Criminal Brief David Fall

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Criminal Brief - David - FALL
Criminal Law (University of Windsor)
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Criminal Law Brief

What is a crime? S.91 – Federal Gov’t Powers
- Defined as act which the law, with appropriate penal  s.91(27) – The Criminal Law
sanctions, forbids - Procedures + establishing / maintaining penitentiaries
- Targeted at some evil, injurious effect on public - 2 years or more = federal penitentiary
- Effect talking about is in relation to either social, - less than 2 years = provincial prison / reformatory
economic, or political interest S.92 – provincial powers in Criminal Law
- Crime  Prohibition + Penalty + Public Purpose - s.92(6) + (14) relate to CL
- s.92(6)  prov powers to maintain reformatories
SCOPE & PURPOSE OF CRIMES? w/in province
- Scope  s.91 and s.92 of Constitution – outlines - s.92(14)  fed powers can’t interfere w prov pow
powers that each level of gov’t has - Prov Pow are ability to govern & set up admin of the
province  including prov courts – civil & criminal
court jurisdiction
Substantive vs. Common Law vs. Procedure in CL Basic Principles / Key Pillars of CL
Substantive  talking about statutes themselves 1) Presumption of Innocence
- CC, Youth Criminal Justice Act, Controlled Drugs and 2) Crown’s Burden of Proof
Substances Act  3 main ones 3) Actus Reus
- Made by feds – this is their power to do so 4) Mens Rea
Common Law  system of law based on judicial syst
- interpretation of statutes and how it should apply Basic Purpose of CL
- In Canada (Ont. for right now)  mixture applied in - Protect all members of society including the offender/
our courtrooms of substantive laws (primary), but accused from seriously dangerous & injurious conduct
many decisions also guided or mandated by common and to contributing maintenance of safe & peaceful
law – coming out of appellate court 1ly society through establishment of procedures
- Trial Courts must follow precedent: - Deter individuals from committing offences or
- Ontario Superior Court  Ontario Court of Appeals  prevent crime  how? Imposition of prohibitions,
Supreme Court of Canada = all precedent courts sanctions, and procedures
Procedure  How it happens… How a case goes about - Focus in CL is on conduct of accused – NOT on merits
getting tried – don’t worry too much of the victim  contrasting to civil law where person’s
negligence is very relevant
Criminal Conviction is very serious label to impose: ADVERSARY SYSTEM (AS)
- Besides potential of jail, many other consequences a) Science v. Field of Law
- Inability to move freely, get a job, etc. b) Search for the Truth?
- One reason why crown has burden of proof BRD c) Parties?
Accused is NOT an offender until CONVICTED d) Vs. Inquisitorial Method?
- Not right to label complainant as victim until settled
- AS is system where parties (Crown & Defence)
Reasons for why prosecution has to prove BRD: present case before impartial decision maker (judge or
- not guilty does NOT MEAN innocent  just means jury) – both have something they’re trying to prove
prosecution hasn’t proven BRD of their guilt - The judge is not a party – just decides whether or not
- question of guilty / not guilty instead of innocent / C has proven case BRD – heavy burden of impartiality
not innocent - Notion for Search for the Truth – How this is a
- Sometimes personal conscience and judicial fundamental concept in law
conscience do not align  BUT question is whether AS ultimately ACHIEVES
Is the Criminal Justice System Always Adversarial? truth or if it’s an APPROXIMATION of truth
- NO – definitely criminal cases that are NOT  identifiable obstacles in this kind of concept:
- Plea Bargaining – when C&D get together to talk = - Lawyers trained to seek success – they want to WIN

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resolution discussion - Will always be inequalities b/w parties that might

 this is NOT ADVERSARIAL METHOD impede search for truth (how much $ you have)
 C&D will discuss possible other outcomes through - Thinking about access to justice, is there a
having cordial conversation difference in outcome when someone is represented
- Pleading Guilty – Not everyone who is charged w/ by skilled lawyer vs. representing themselves?  IF
criminal offence exercises right to trial SO, what does this say about our pursuit of truth?
Judge  decides whether C prove case BRD Attorney General
- Heavy burden of impartiality  will recuse in - s.91 & s.92 of Constitution
instances of bias so public’s confidence is - Under Con., feds responsible for CL
administration of justice is not undermined - AG is CHIEF law officer in charge – responsible for
- Asks questions to understand arguments, but does prosecution of all those cases
not provide any evidence - Regulatory offences – any type of offence found in a
- Helps further search for truth despite impediments: piece of prov lgl and NOT in CC
1) Passage of time affects reliability of testimony - Some decision still requires AG consent:
2) Inequality of parties - Certain provisions in CC (Charging section)
3) Lawyers want to WIN - If we want to lay a particular charge
- AG will appoint prosecutors who will acts as agents
Crown (Her majesty the Queen)  role of C is rooted - Pros. must act objectively, independently, fairly
in fairness, NOT winning Crown
- If C believes not enough evidence to convict – can - Comes from # of sources in the jurisprudence
recommend a dismissal Seminal Cases: R V. BOUCHER – SCC – 1951
- C also guided by C Prosecution Manual
Defense  Must work w/ C to ensure justice carried - Shouldn’t consider personal feelings or any political
out as best as possible advantages/disadvantages that may arise from starting
- Must ensure no one found guilty unless charge PBRD or stopping particular proceeding
 Must put forward every r. defense for client - Pros dedicated to enhancing public safety & welfare
- Must put accuser on trial to test validity of accusation - Role of C is NOT to win or lose – it is NOT to secure
- Obligation to all of society to do the above and conviction – it’s to exclude any notion of winning or
protect all Charter rights losing & it’s simply to present evidence in a fair,
- Must keep private opinion out of job  “I defend dispassionate, and moderate manner
clients, not crimes” - Also, must be open to possibility of innocence of acc.
- Can Assistant C attorneys be advocates?  YES – they
are also ministers of justice
- If objective belief that evidence rises to level where
conviction is to be registered, then it’s your role to
convict the person
- If NOT PBRD, you shouldn’t be asking judge to convict
ETHICAL OBLIGATIONS OF THE CROWN & DEFENCE - D NEVER has to provide C with anything – why? B/c D
R V. STINCHCOMBE – SCC - 1991 is innocent until proven guilty (IUPG) and C must PBRD
 Describes role of C B) Obligation to disclose is NOT absolute
A) Fruits of a police investigation which are in - 4 main circumstances where C can withhold info:
possession of the C are not ppt of the C, for use in 1) Info is clearly irrelevant
securing conviction, but are the ppt of the public to be 2) Privileged info
used to ensure justice is done 3) If info will impede investigation
- C must disclose all materials in possession or 4) Timing of disclosure is up to C
materials that they become aware of that become part Ex) solicitor-client privilege
of the fruits of the police investigation - C can’t use privileged info against accused
- C has duty to disclose all material it proposes to use - If C did NOT disclose something, D can bring
at trial, & all material it may not use, but may assist D disclosure app to the court
EXAM QUESTION: How is THREE CLASSIFICATIONS OF OFFENCES:

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disclosure found and how do you  Bill C-75 – Act to Ament the CC, et. Al.
get it? 1) Summary Offences  In CC
- Disclosure: In litigation, the - Lowest level of offences
release of docs and other info - Max penalty: $5000 fine, 2 years less a day, or both
subpoenaed or otherwise sought - Agent can appear for individual – accused doesn’t have to appear in court
by the other side – someone - Tried in Ontario Court of Justice (OCJ)
must request it – you can ask for - §787 of CC provides general penalty if not otherwise specified
additional disclosure and if you - “Super Summary” offences have higher penalty
get it, must provide a request for EX: Causing a disturbance, trespass at night, etc
disclosure, results in the C’s  2-year sentence is NOT AVAILABLE – typically served in reformatories
obligation to give info instead of penitentiaries
2) Indictable Offences  in CC 3) Hybrid (Dual) Offences  Not in CC
- More serious offences b/c C chooses either summary or
- Max penalty: 2 years to life indictable
- Accused MUST APPEAR at every proceeding unless lawyer is - Seriousness of offence can vary greatly
representing them - C decides how to proceed (Summary
3 categories of Indictable Offences or Indictable)
1) CC 469: jurisdiction for SCJ (ex. Murder)  ^ based on a number of factors:
2) Non 469: jurisdiction for OCJ (quicker trial date) or SCJ  A) Seriousness of offence
Accused can choose B) Background of offender
3) CC 553: jurisdiction for OCJ C) Impact on victims
EX: 1st degree, robbery, aggravated ass., etc
- The longer the sentence, the less focused they are in rehabilitation &
more focused on deterring and separating danger from society
 Reasons to proceed a certain way:
A) If proceed w/ indictment – gives accused to be tried w/ choice (Remember, SO – tried in OCJ, IO – accused has
right to either be tried in OCJ or SCJ w/ OR w/o jury & w/ OR w/o prelim hearing
 If they DO have PH (to see if there’s sufficient evidence to stand trial), then committed to stand trial in OCJ
B) Statute of Limitations  12 months now – from date of particular offence, 12 months to proceed SUMMARILY
- Outside of that, C can’t proceed sum., unless accused waives
 If someone charged w/ indictable offence (breaking & entering)  STRAIGHT IO  so, they have PH (OCJ) – if
after PH, justice finds they have enough evidence to proceed to trial, accused can choose which court to be heard
 But if NO PH and go straight to trial, they can elect to have a trial in SCJ (waiving right to PH) or in OCJ
What’s the difference? - Can be a matter of delay  SCJ may be busier than OCJ
In a HYBRID OFFENCE  always the C that chooses to proceed sum or ind – once they choose summarily, then
that’s it… if they proceed by indictment, then that’s when accused has options
ADVANTAGES AND DISADVANTAGES OF BILL C-75 Ex) Breaking and Entering
- Came into force September 2019  … is guilty (d) or (e)
- Responsible for increasing statute of limitation on (d)  indictable offence & liable for imprison. for life
summary conviction – matters from 6  12 months (e)  indictable offence OR summary conviction 
- Also created increase in general penalty: HYBRID offence
1) General penalty: 6 months  2 years less a day Ex) Trespassing at night
Why?  b/c when this act came into place, it  ONLY summary conviction
hybridized (took 118 former straight indictable - Max sentence $5000 or 2 years less than a day
offences, and made them hybrid offences) Ex) Uttering Threats
 indictable – up to 5 years OR summary conviction
 NO CHANCE AT PH b/c less than 10 years
Ex) Manslaughter
- Also changed # of maximum penalties: - minimum 4 years to life imprisonment

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2) Before, anybody charged with IO can have PH   ONLY INDICTABLE b/c more than 2 years
now, only eligible to have PH if max penalty is MORE
than 10 years jail (IF AT 10 years, not eligible)
 Any person under age of 18 is considered “young
person” – in the Youth Criminal Justice Act
 Young person is NOT entitled to PH OR Jury Trial
- PH is ONLY for adult accused
Procedural Differences B/w Offences Substantive vs. Procedural
- Most significant – preliminary hearing - summary Substantive  substantive law provides definition of
takes less time, C makes their election on the first time, offences (what does assault mean?)
accused know what their holding is  federal statutes, CC, controlled drugs, etc…
- Indictable – No agent can speak – accused has to be Procedural  Steps to how offences will be tried
there, unless lawyer makes a designation – court will  Case law/precedence – interpret of what statute
issue a warrant until the next court appearance where means
accused has to appear, or the lawyer will have a
designation

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FOUR SOURCES OF CRIM LAW (MIZEL) 1) COMMON LAW (JURISPRUDENCE)

1) Common Law A) R. V. SEDLEY – 1663
2) Division of powers under Constitution FACTS  Sedley indicted on several misdemeanors
3) Charter of Rights and Freedoms against King’s peace – got on balcony, undressed, and
4) Statutory Law threw bottles filled w/ urine at people – but no CC or
 When approaching legal issue, the way to find the statutory offence known at time
answer is to go to the source  often will lie in ISSUE  Can D be charged w/o crime in the code?
statutory law (lgl – ex. CC) & other statutes HELD  YES, the court can
Ex) Drug Offences  Controlled Drugs & Subst. Act REASONING  It’s responsibility of court to punish &
B) FREY V. FEDORUK – SCC – 1950 hold Sedley accountable for such profane actions
FACTS  P looking into window at D’s mom – D chased - Judgment goes on to note how Christianity and
P & detained him – Police called, arrested w/o warrant morality was neglected
– P sues for damages due to false imprisonment - Important case b/c example of common law offence
ISSUE  Do courts have ability to make their own laws - NO LAW, but looked at his conduct and determined it
w/ respect to crime, or should this be left to lgl? offended morality & religion – felt that those types of
 Was he falsely imprisoned? action OUGHT to be punished
HOLDING  Criminal offences are to be found in CC - SO, Court was able to determine whether some act
- Being peeping tom wasn’t found in CC, TF, NOT an was illegal without a crime – no longer valid
offence known to law  no justification for D & police - Custos morum  guardians of morality
to have imprisoned him 5 years after Frey & Fedoruk, CC amended
Trial level – found detention was justified b/c Frey 1955 AMENDMENTS TO THE CC
was committing offence at common law - CC s.9  no person can be convicted for a criminal
CA – agreed w/ TJ – said conduct was criminal in that offence at common law
it fell in definition of breaching king’s peace - This case led to abolishment of common law offences
SCC – disagreed – struggled w/ expression “breach of - Criminal offences now determined based on statutes
the king’s peace” b/c of ambiguity and quite overbroad - BUT… one exception
- SCC concerned that scope (allowing common law - ONLY exception is being contempt of court
offence at breach of king’s peace) might capture  This statute abolished common law offences – but a
conduct that isn’t actually criminal judge can still hold someone in contempt of court
- do NOT want to label someone as criminal - CC s.8(3)  preserves all common law DEFENCES
- didn’t want to introduce uncertainty, which could  While CLOs do not exist, CL defences (CLDs) – i.e.
have happened if they left the task of determining defences that have been developed in the case law –
what constitutes a crime up to the judge all still exist by virtue of this subsection
- Explicitly said that what is to be declared criminal - Many of these CLDs have been codified
should be left to Parliament, and NOT the courts - So, you have to look at CASE LAW to your defence
- CLDs – although many have been codified, many CLDs
NOT in CC that you can ONLY find in case law
- Ex. Entrapment  NOT in CC, but only in Case Law
DOCTRINE OF PRECEDENT R. V. HENRY
Stare Decisis = Doctrine of precedent  look at distinction b/w RD & OD
 binding power of case law - Court in Henry took a pause & took a look at role of
- Common law still VERY important and essential to the court – particularly the SCC in the 1970s
operation of criminal justice system - Court points out that the court’s mandate at that
- Common law helps us understand full breadth of law time was really more to develop the jurisprudence
- Helps shape the rules & helps judiciary establish - Particularly after the C came into play (1982), the
precedence court had a significant amount of work to do in
- On relying on previous decisions, distinction developing analytical framework necessary to really be
sometimes has to be drawn b/w what is ratio able to analyze any particular C case
decidendi or obiter dicta  EX: Decision of R V. OAKES – landmark decision by

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Obiter Dicta = other statements made by court during Justice Dixon setting out analysis to S.1 of C
course of their decision - When you look at this decision, Dixon’s analysis to
Ratio Decidendi = point or points that the case s.1 was NOT dispositive issue in this case  it was
actually decides – main proposition of laws that flow NOT the ratio, but ever since that case, other courts
from the case have looked at Dixon’s remarks & analysis for s.1 and
DIVISION OF POWERS UNDER THE CA 1867 basically regarded it as binding b/c as they pointed
s.91  federal out in Henry, to dismiss Dixon’s analysis in Oakes as
- s.91(27)  criminal law mere OD would be RIDICULOUS
s.92  provincial - So, they knew they couldn’t take such a strict
- s.92(6)  management of prison definition of OD, which the lawyers in Henry were
- s.92(13)  property and civil rights trying to do
- s.92(14)  administration of justice - At this point in decision, they referred to a Seller’s
- DIVISION OF POWERS  another source of crim law Principle – don’t worry about for exam
 the reason is b/c this is really where our crim law - HENRY CASE RATIO  While not necessarily binding,
actually comes from some ODs matter more than others do
- Feds empowered to make crim law by s.91(27) in CA  But ranges from HIGHLY persuasive to completely
- Provs empowered to make crim law by s.92 in CA useless – sometimes you can ask the court to give
more weight
REFERENCE RE FIREARMS ACT (CANADA) – SCC – 2000 2) Classifying the matter of the Constitution
- A reference occurs when someone passes a law but - There’s a presumption of constitutionality – when a
someone else doesn’t think it’s in their jrd law is passed, it is presumed to be Constitutional
 This case: looked at an act (FA) to decide if it was - That means the burden is on Alberta (or the
intra vires or ultra vires challenging party) to show that the act does not fall
- Parliament/feds enacted in the CC the FA  made within the jrd of the gov’t
people hold licenses to get their guns
- Alberta challenged fed’s power to enact this through - Court ended up viewing 3 elements of what makes
a reference Criminal Law:
- Alberta appealed to SCC 1) Valid Criminal Law Purpose
ISSUE  whether or not Parliament had constitutional 2) Backed up by prohibition
authority to enact the Firearms Act 3) Penalty for prohibition
 Was it Crim Law – 91(27)? - Court found:
 Was it Property & Civil Rights? – 92(13)? 1) Purpose of regulating guns has a valid purpose
Court looked at two things: within Crim Law – which was public safety
1) Pith and Substance of the Law 2) Prohibition of the law was a provision in ss.112
- looked at what law was in relation to – purpose of the that prohibited possession of a firearms w/o license
law & legal effects of the law 3) There was a penalty if couldn’t provide license or
- After reviewing the intrinsic and extrinsic evidence, registration
they determined that P&S was really for public safety – - Court concluded it was properly classified under
not to say that it didn’t impact ppt & civil rights, but it subsection (27) – and that feds had authority to enact
wasn’t the main aspect of the law - Eventually, long gun registry was abolished
CHARTER OF RIGHTS AND FREEDOMS - 1982 - Main provisions are in s.24 of the C
- Last source of Criminal Law  Anyone whose rights or freedoms, as guaranteed by
- S.52(1) this C, has been infringed or denied may apply to a
- Impact on Crim Courts court of competent jrd to obtain such remedy as the
- Remedies under the Charter – s.24 & 52 court considers appropriate & just in the circumstances
- Applies to federal and provincial laws - When someone is successful, the remedy is found
S.52 – states that Constitution of Canada is the here and you either ask for a stay (drastic remedy – has
SUPREME LAW – any law that is inconsistent w/ the to be fairly significant violation) or ask for exclusion of
Con is of no force or effect the evidence – 90% of time they’re seeking the latter
- significant b/c it’s a principle of parliamentary - Back to s.52 – When there are challenges made

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supremacy regarding the constitutionality of laws, the law is

- If any law or piece of lgl is inconsistent with one of STRUCK DOWN and Parliament is given opportunity to
the rights of the C, then to the extent of the respond or redraft law or do whatever it is they have to
inconsistency, the law is of no force or effect
HUNTER V. SOUTHAM – 1984 – SCC Two types of Charter Challenges

- Stands for the proposition that we are to take a 1) Challenges to Conduct
PROPULSIVE APPROACH  when you look at the - challenging actions of state – actions of investigating
purpose of section, why did Parliament enact this officers  saying that an agent of state’s conduct was
right? What is it protecting? unlawful & violated individual’s right for unreasonable
FACTS – Under Combines Invest. Act, Hunter examined search and seizure
docs of Southam’s business. They didn’t want to give - These types of challenges are focused on CONDUCT
name of people whose complaints had initiated the of agents – alleging their conduct resulted in there
inquiry, or to say which section of the Act the inquiry being violation of someone’s C rights (ex. excessive
had begun force)
ISSUE: What does “unreasonable” mean in s.8 of C? 2) Challenges to Law
DECISION: S.8 of C only protects reasonable - States that a particular law violates the C b/c it is
expectation of privacy, where the reasonableness if inconsistent w/ a certain section – s.7, for example –
evaluated by balancing privacy interests against the and the principles of fundamental justice
states interest in law enforcement - Challenging minimum mandatory sentences, for
RATIO: A search w/o a warrant is unreasonable, & the example  saying it’s grossly disproportionate
onus is on the police to show that it was reasonable *** References only occur when dealing w/ heads of
powers & whether or not feds or provs had authority
- When challenging law, you do that with C application
 if someone charged w/ particular offence, you claim
that a certain section is unconstitutional – NOT through
a reference but through C application
- If statute deemed unconstitutional  declared invalid

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S.7  Right to Life, Liberty, & Security of a Person A & B) Vagueness & Overbreadth
 important question when dealing with s.7  Does the law - Test for this is whether or not there is sufficient
that the accused is said to have been violated, consistent w/ room for legal debate
the Principles of Fundamental Justice? - Constitutional doctrine void for vagueness is
- significant impact on Crim Law well recognized by the courts
 IF CC NOT consistent with FUNDAMENTAL PRINCIPLES OF - Leading Case is Canadian Foundation Case
JUSTICE, then struck down CANADIAN FOUNDATION FOR CHILDREN –
WHAT ARE PRINCIPLES OF FUNDAMENTAL JUSTICE? 2004 – SCC
- Common law has defined this - S.43 of Charter  Correction of child by force –
- R. V. Malmo-Levine – SCC sets out the test whether a this provision still exists
particular rule qualifies as a PFJ - s.43 is a justification
1) Has to be a legal principle  What it does is that it justifies using
2) Must be significant societal consensus that this is corrective force towards a pupil or child if the
fundamental to the way in which the legal system ought to force does not exceed what is reasonable under
operate the circumstances
3) Must be identified w/ legal precision which focuses on 4 ISSUE: The issue was the constitutionality of
principles to yield a manageable standard: Parliament’s decision to carve out a sphere w/in
- Vagueness, Overbreadth, Arbitrariness, Gross which children’s parents & teachers can use
Disproportionality minor corrective force in certain circumstances
- Anything that doesn’t fit these categories cannot be w/o facing criminal sanction
prescribed as a law - CFC seeking declaration that this provision
violated s.7 of C b/c failed to give procedural
protection to children & argued that law was
BEDFORD V. A.G. – 2013 – SCC - overbroad & vague
- Good cases to talk about arbitrariness, overbreadth, and GP - Court set out Standard for Vagueness:
- Court provided 3 definition to the terms above: - Certainty is NOT REQUIRED
1) Arbitrariness  There is an absence of any link b/w the - Must be adequate room for legal debate &
objective of the law & its negative impact on security of the analysis
person
2) Overbreadth  Occurs where law imposes a limit on Court looked at s.43  Is it void for vagueness?
security of the person that goes beyond what is required to Found:
achieve its purpose - S.43 clearly delineates who can avail
3) Gross Disproportionality  Effects of the law are so themselves to this provision  clearly states
extreme that it can’t be justified by its objective who this provision applies to
- But court also states that it delineates LESS
SAFARZADAH-MARKHALI – 2015 – SCC PRECISELY WHAT CONDUCT falls within its
- Whether a law or provision is overbroad will turn on the sphere
law’s purpose  what does “corrective” and “reasonable”
 Look at statements, purpose of lgl, context & scheme of mean?
lgl, and any extrinsic evidence (lgl history) If courts can’t understand – maybe void for
- Purpose of the law in this case was to enhance public safety, vagueness
but court ultimately concluded law was overbroad b/c it - Through COMMON LAW, court basically added
arguably would impact individuals or offenders who really did instructive elements to this section
not pose any risk to public safety Two limitations to the requirement of
 eventually, court found provision was overbroad and CORRECTION:
eventually struck it down as unconstitutional and of no force 1) Person applying force must have done it with
or effect INTENT OF EDUCATION – doesn’t protect bursts
of anger
- Has to be SOBER REASONED use of force
2) Child MUST BE ABLE IN BENEFITING from this

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 Also held that any force against a child under

the age of 2 is NOT corrective b/c child at that
age does not have mental capacity from
benefiting from that force
 Also, child w/ disability may also be
incapable
Requirement of REASONABLE:
- Degrading, inhuman, & harmful conduct is
NOT PROTECTED
- Objective test instead of subjective
 What is reasonable in circumstance will not
turn to what the parent thought was reasonable
– but instead, the court will ask, “will a
reasonable person think that the conduct was
reasonable given the circumstance?”
- Includes teachers also
HOLDING: After adding in these elements, they

found that s.43 was NOT void for vagueness
“Spanking Law”
INTERPRETATION OF CRIMINAL STATUTES R. V. CLARK – 2005 – SCC

RE APPLICATION UNDER S.83.28 – 2004 – SCC - repeat of statements made in RE made in BOLD
- Brought in after 9-11 as a result of terrorist attack - as a matter of semantics, the ordinary meaning of the
- SCC asked to rule on constitutionality on an aspect of disputed term will, of course, often vary w/ the context
anti-terrorism legislation (s.83.01 to 83.33) in which it is being used
- General principles of statutory interpretation - guy masturbating by a window was charged under
Modern Principle of Statutory Interpretation  s.173(1)a & (1)b & s.83.28 of CC
Words of lgl MUST BE READ “in their entire context - Offence to willfully do an indecent act in public – as to
and in their grammatical and ordinary sense insult or offend a person 1(b)
harmoniously w/ scheme of the Act, the object of the - Court repeats the same statute in Rizzo & Rizzo & RE
Act, and the intention of Parliament - As a matter of semantics, the ordinary meaning will
 Underlying this approach is a presumption that lgl is often vary w/ what context in which it is being used
enacted to comply w/ constitutional norms, including - Court stated some KEY PRINCIPLES:
the rights & freedoms enshrined in the C. Accordingly, 1) Parliament is Deemed to Act Deliberately
where two readings of a provision are equally - If something is included or omitted, one has to start
plausible, the interpretation which accords w/ charter w/ notion it was intended to be included or omitted
values should be adopted 2) Courts don’t make laws – that’s up to Parliament
 i.e. Charter values are to be used as interpretive - SCC made it CLEAR that it’s inappropriate for courts
principle only in circum. of genuine ambiguity to do this
R. V. GOULIS – 1981 – OCA R. V. PARE – 1987 – SCC
- BEFORE app under 82.28, Rizzo & Bell Express Vu - 17 yo murders 7 yo boy 2 minutes after indecently
 Dealing with interpretation of Crim Statutes assaulting him
Doctrine of Strict Construction  If a criminal - So, indecently assaulted him, made the boy lay on his
provision is reasonable capable of two interpretations, back, waited 2 mins, then strangled him
that interpretation which is the more favorable to the  2 minutes very important in this case
accused must be adopted  Words could have one meaning when disembodied
- This principle does NOT ALWAYS REQUIRE a word from the CC and another meaning entirely when read

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that has two accepted meanings to be given the more in the context of the scheme & purpose of the lgl
restrictive meaning - It is the LATTER meaning we must ascertain
- Where a word is used in a statute has two accepted DSC of crim statutes still exists – adopt interpretation
meanings, then either or both meanings may apply most favorable to accused – BUT still have to
- Court first required to endeavor to determine the determine if interpretation is a reasonable one, given
sense in which Parliament used the word from the scheme & purpose of lgl
context in which it appears  Apply the Modern  If PLM’s intent conflicts w/ interpreting in favor of
Principle of Interpretation first  coming from the accused, must go w/ parliamentary intent first
Reference & Clark Case  interpretation that runs contrary to common sense
- ONLY IN THE CASE OF AMBIGUITY which still exists is not to be adopted if a reasonable alternative is avail
after full context is considered, where it is uncertain in - In this case, the indecent act was finished, but the
which sense Parliament used the word, that the above accused held on his chest for 2 minutes and didn’t let
rule of statutory construction requires him go before he proceeded to kill him
- Court decided it was FIRST DEGREE MURDER
R. V. MAC – 2001 – OCA SUMMARY OF INTERPRETATION OF CRIM STATUTES
- 5 convictions arose out of charges laid under the CC – 1) Modern principle of interpretation is applied
charges alleged that appellant was in possession of  RE Application Under s.83.28
various machines & materials “ADAPTED” for and If this doesn’t resolve, then…
intended to be used to create forged credit cards 2) If one version of Code raises ambiguity, should look
 Provisions states that “everyone who knowingly has to other official language version to determine
in their possession, plate, dye, etc., or other material in whether meaning is plain & unequivocal and apply it
which is ADAPTED and intended to be used… is  Goulis
indictable of criminal offence” If there’s still ambiguity, then…
- Principle that ambiguous penal provisions must be 3) Look to resolve ambiguity by considering Charter
interpreted in favor of accused does not mean most values (i.e. version that aligns best w/ C values)
restrictive possible meaning of any word is preferred  Clark
 The principle applies only where there is TRUE If still unclear/ambiguous, then…
AMBIGUITY as to meaning of a word in penal statute 4) Apply Strict Construction Rule – the one more
- Meaning of words can’t be determined by examining favorable to the accused – the more narrow
words in isolation – must examine in their context interpretation
- TRUE AMBIGUITIES exist when meaning remains  Pare
unclear after full contextual analysis of statute
PRESUMPTION OF INNOCENCE AND THE WOOLMINGTON V. DPP – 1935 – HOUSE OF LORDS
STANDARD OF PROOF - HL was SCC of Great Britain
- s.11(d) of CRF  Any person charged with an - Charge to jury – “if killing proved, presumed to be murder
offence has the right (d) to be presumed innocent unless accused proved accident”
until proven guilty according to law in a fair &  Section 11(d) – presumed to be not guilty
public hearing by an independent and impartial - Principles that were to get from this case:
tribunal 1) While the prosecution must prove the guilt of the
accused, there is no such burden laid on the accused to
PRESUMPTION OF INNOCENCE prove his innocence; he is not bound to satisfy the jury of
- What does it mean for the accused? his innocence. Burden on prosecution to show guilt of
 POI means accused starts the trial w/ clean accused
slate 2) If at the end and on the whole of the case, there is a
 Stays with him/her throughout the case, from reasonable doubt, created by evidence given by either the
start to finish. ONLY defeated if & when the C prosecution or the accused, the prosecution has not met
satisfies the trier of fact BRD of the guilt of the its burden and the prisoner is entitled to an acquittal
accused – DUBOIS  This was pre-charter remember – so all case law and
precedent – no statutes

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 Accused does not “have” to testify – why? b/c - 1) = Innocent until proven guilty
the presumption of innocence - 2) = Crown must PBRD
- Does not “have” to present evidence or prove
anything in the case - NOW s.11(d) is entrenched in the Charter
- Crown counsel who must prove guilt BRD, not  it’s now a principle in ALL CRIMINAL TRIALS – lies at the
the accused who must prove his/her innocence very heart of criminal law  R V OAKES!!!!
Exam Question: What are considered the four principles of
R. V. LIFCHUS – 1997 – SCR criminal law?
 REASONABLE DOUBT 1) Actus Reus
- SEMINAL CASE ALERT 2) Mens Rea
- Stockbroker convicted of fraud charge, but 3) Innocent Until Proven Guilty
acquitted of theft  Appealed his conviction 4) Crown has the burden of PBRD
- Main ground was that TC erred in charging jury
on the meaning of the expression “PBRD” How Should the Expression “RD” be Explained to Jury?
- TJ said that PBYD in the ordinary natural sense What Should be Explained?
are words you understand - Standard of PBRD intertwined w/ principle fundamental
- On appeal  accused lawyer contended TJ erred to all crim trials  POI
in instructing on meaning by using words BRD as - Burden of Proof (BP) rests on prosecution throughout trial
words that are used in everyday speech and never shifts to accused
“The phrase “BRD” is composed of words - RD is not doubt based upon sympathy or prejudice
commonly used in everyday speech. Yet, these  RATHER, based upon reason & common sense
words have a specific meaning in legal context. In - Logically connected to evidence/absence of evidence
crim proceedings, where liberty of the subject is - Does NOT involve proof to ABSOLUTE certainty – it is not
at stake, it’s of fundamental importance that proof beyond any doubt nor is it an imaginary or frivolous
jurors fully understand the nature of the burden doubt
of proof that the law requires them to apply” - More is required that proof that the accused is PROBABLY
guilty – a jury / judge which concludes only that the
accused is probably guilty must acquit
What Should be Avoided R. V. STARR – 2000 – SCC
1) Describing RD as an ordinary expression which has similar to what SCC said in Lifchus:
no special meaning in crim law context  BRD – closer to ABSOLUTE certainty than Balance
2) Inviting jurors to apply to the task before them the of Probability
same SOP that they apply to important, or even the - Jury MUST be instructed that SOP in crim trial is
most important, decisions in their own lives higher than probability standard used in making
3) Equating PBRD to proof “to a moral certainty” everyday decisions and in civil trials
4) Qualifying the word “doubt” w/ adjectives other - There’s NO universally intelligible illustration of that
than “reasonable”, such as “serious”, “substantial”, or concept, such as the scales of justice w/ respect to the
“haunting”, which may mislead the jury balance of probability standard. Unlike absolute
5) Instructing jurors that they may convict if they are certainty or the balance of probabilities, RD is NOT an
“sure” that the accused is guilty, before providing easily quantifiable standard. It CANNOT be measured
them with a proper definition as to the meaning of or DESCRIBED by analogy. It MUST be explained but it
the words “BRD” is difficult to explain
Effective way to describe RD standard is to explain R. V. S (J.H.) – 2008 – SCC
that it falls much closer to AC than proof on BOP… as - the lack of a credibility on the part of the accused
stated in Lifchus, a TJ is required to explain that does NOT equate to proof of his guilty BRD as required
something less than AC is required, and that  R. V. W. (D.) – 1991 – SCC
something more than probable guilt is required, in - where credibility is a central issue, the judge must
order for the jury to convict. explain that relationship b/w assessment of
credibility and the C’s ultimate BOP the guilt of the

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Appropriate for the TJ to situate the RD standard accused to the criminal standard. That is where the
appropriately b/w these two standards. If standards case of R. v. W comes into play
of proof were maked on a measure, PBRD would live
much closer to AC than to BOP. R. V. W. (D.) ANALYSIS
- where credibility is important, the TJ MUST instruct
THE BOTTOM LINE the jury that the rule of RD applies to that issue. The TJ
should instruct the jury that:
- if based on evidence you accept you are satisfied BRD 1st  if you believe the evidence of accused,
that all essential elements proven  CONVICT obviously, you MUST ACQUIT
2nd  if you do NOT believe the testimony of
- If there is ever a RD of guilt  MUST ACQUIT accused, but left in RD by it, you MUST ACQUIT
(b/c evidence you do accept raised a doubt or if left
you with not knowing who to believe)
 This applies not only to RD about accused overall
guilt but if left w/ a RD about an essential element of
the offence charged you must acquit
3rd  even if you are NOT left in doubt by the
evidence of accused, you MUST ask yourself whether,
on the basis of the evidence you DO accept, you are
convinced BRD by that evidence of the guilt
 EVEN if you find all of the elements except one are
PBRD, you still have to acquit – you need ALL elements
R. V. MULLINS-JOHNSON R. V. OAKES – 1986 – SCC
- There are not in Canadian law two kinds of acquittals:  reverse onus and the Charter
1) those based on the C having failed to prove its case - The right to be presumed innocent until proven guilty
BRD; and requires that s.11(d) have at a minimum, the following
2) those where the accused has been shown to be content:
factually innocent 1st – individual must be proven guilty BRD
2nd – It is STATE that must bear the BOP
 SUDDEN DEATH SYNDROM  s.11(d) imposes upon the C the BOP the accused’s
- there was a coroner in Ontario who used to give guilt BRD as well as that of making out the case against
evidence about a lot of cases  Many instances, his the accused before he or she need respond, either by
examinations were FLAWED testifying or calling other evidence
- Lawyer on case was stating to judge that he was 3rd – criminal prosecutions must be carried out in
INNOCENT (not that he was not guilty) accordance w/ lawful procedures & fairness
- Judge can NEVER say, “Sir, not only do I find you not (the latter part of s.11(d), which requires the proof of
guilty… I also think you are totally innocent” – NEVER guilt “according to law in a fair & public hearing by an
 ALL not-guilty means is that the TJ has not be independent & impartial tribunal”, underlines the
satisfied BRD – C hasn’t met its burden importance of this procedural requirement

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R. V. DOWNEY
- POI infringed whenever the accused is liable to be convicted despite existence of a RD
- If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or
disprove, on a BOP either an element of an offense or an excuse, then it contravenes s.11(d). Such a provision
would permit a conviction in spite of a RD
- It must be remembered that statutory presumptions which infringe s.11(d) may still be justified pursuant to
s.1 of the Charter  Keegstra
- Statute requiring accused to prove own innocence creates “REVERSE ONUS” and it is UNCONSTITUTIONAL 
question becomes, can it be saved by s.1
- if a reverse onus is dealing with a person’s guilt  that’s called “Persuasive Burden” or “Evidentiary Burden”
 You cannot have a reverse onus
ADVANTAGES AND DISADVANTAGES OF BILL C-75 Ex) Breaking and Enteriing

- Came into force September 2019  … is guilty (d) or (e)
- Responsible for increasing statute of limitation on (d)  indictable offence & liable for imprison. for life
summary conviction – matters from 6  12 months (e)  indictable offence OR summary conviction 
- Also created increase in general penalty: HYBRID offence
1) General penalty: 6 months  2 years less a day Ex) Trespassing at night
Why?  b/c when this act came into place, it  ONLY summary conviction
hybridized (took 118 former straight indictable - Max sentence $5000 or 2 years less than a day
offences, and made them hybrid offences) Ex) Uttering Threats
- Also changed # of maximum penalties:  indictable – up to 5 years OR summary conviction
2) Before, anybody charged with IO can have PH   NO CHANCE AT PH b/c less than 10 years
now, only eligible to have PH if max penalty is MORE Ex) Manslaughter
than 10 years jail (IF AT 10 years, not eligible) - minimum 4 years to life imprisonment
 Any person under age of 18 is considered “young  ONLY INDICTABLE b/c more than 2 years
person” – in the Youth Criminal Justice Act
 Young person is NOT entitled to PH OR Jury Trial
- PH is ONLY for adult accused
THE ACT REQUIREMENT FACTS  Porter made lots of noise from his premises
R. V. LOHNES – 1992 - SCC and Lohnes shouted obscenity to him
- What constitutes a public disturbance w/in the  Court said causing a disturbance is a 2-element
meaning of s.175(1)(a)? offence  i.e. Court had to prove these 2 things:
 When looking at the charging section, the C sets out 1) Person was fighting, shouting, swearing, etc…
all elements they have to prove BRD 2) The particular action actually caused a disturbance
- CAUSING A DISTURBANCE case in or near a public place  this is the main thing
 Everyone who 1(a)  i, ii, OR iii  b  c  d  - Where do we draw the line?
GUILTY of an offence punishable on SUMMARY CONV. HOLDING  No evidence that there was externally
- In addition to proving one of the acts listed, the C has manifested disturbance, as required to prove act
to prove that the particular act ACTUALLY CAUSED A RATIO  S.175(1)(a) – requires an externally
DISTURBANCE in or near a public place manifested disturbance, in or near a public place,
consisting either in the act itself or in a secondary
disturbance (causing others to disturb)
Court’s Analysis:  COURT looked at 3 areas:
- authorities/common law  broad 1) Common Law  Authorities – lower courts took both broad &
AND narrow approaches taken to narrow, but observed there weren’t many convictions entered if not
what constitutes “disturbance” overtly manifested
Principles of statutory construction 2) Principles of Statutory Construction  word ‘disturbance’ capable of
 “in or near a public place” many meanings – court also found that in most authorities, more than

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Underlying Policy Issues mere mental disturbance is required

 Public vs. Emotional disturbance - “In or near public place” suggests it was Parliament’s intent to NOT
standards protect society from mere emotional disturbance… but more externally
manifested disturb.
3) Underlying Policy Issues  Practical app of crim law suggests that a
 Test for disturbance PD offence is more appropriate than emotional disturbance standard
Test?  TJ should weight degree & intensity of the conduct complaint
of AGAINST degree & nature of peace which can be expected to prevail
in given place at given time
R. V. BURT – VICARIOUS LIABILITY VICARIOUS LIABILITY SUMMARY
- Not to be confused w/ acting as a party to offence - Doctrine of Vicarious Liability does NOT COME
Doctrine of Vicarious Liability  One person is automatically INTO CRIM LAW
responsible for the wrongdoing of another solely on the basis  TF, charging provision (s.253) was INVALID
of a relationship b/w the parties, irrespective of whether that
person was at fault or even acted
- Police could not ID driver so they charged registered owner
of motor vehicle
 s.253 of Vehicles Act  s.7 C violation
 Absence of the actus reus rendered the provision INVALID
POSSESSION R. V. MARSHALL – JOINT POSSESSION - 1969
- Personal vs. Constructive vs. Joint - S.3(4)(b)  now s.4(3)(b)
Personal  they have unlawful drugs ON THEM - Knowledge & Consent were only issues at the time
Constructive  Unlawful drugs stored somewhere else  Control as element comes LATER
Joint  two people who both have knowledge, ISSUE  Whether Marshall consented to drugs being
consent, and control (KCC) there; is mere acquiescence sufficient to establish
- S.4(3) of CC “control” (think about this in context of actus reus)
- Knowledge, Consent Control = 3 elements of POSS. HOLDING  Marshall did NOT consent to marijuana in
car – just cause he consented to riding, doesn’t mean
he consented to marijuana being there – Very
noteworthy that TJ said he acknowledged he didn’t
consent to it & didn’t have power to do anything
RATIO  mere acquiescence is NOT SUFFICIENT to
establish control
R. V. TERRENCE – CONTROL CASE - SCC FACTS
ISSUE  Whether “control” is element of possession - Terrence was 17 yo – a guy (Rick Hayes) in a new
- Knowledge & consent can’t exist w/o co-existence of Camaro asked if anybody wanted to ride his brother’s
some measure of CONTROL over subject matter new car
Possession = K + C + C - C provided evidence that car was stolen
- Evolution of the law of possession - Testified and said he had no knowledge car stolen
- Joint possession case  Terrence was passenger of - When OPP went to stop vehicle on highway b/c
vehicle & driver was someone else speeding  according to officer, T ran away
HOLDING  No possession b/c no control prove BRD - TJ did not believe T  rejected T’s evidence that he
 this is where Marshall case did not consider didn’t know car was stolen  said there was sufficient
RATIO  The C must satisfy the element of CONTROL, evidence to prove he was in joint possession
on top of KNOWLEDGE and CONSENT - CA disagreed – said there has to be CONTROL of it on
top of knowledge and consent  found no evidence
- SCC AGREED WITH CA – C did NOT have evidence to
show for control  NO POSSESSION
TWO TYPES OF EVIDENCE
1) DIRECT EVIDENCE

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- evidence directly proves a particular point

2) CIRCUMSTANTIAL EVIDENCE
- inferred evidence that proves a particular point

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R. V. MORELLI  INTANGIBLE POSSESSION OR FACTS  Dealing w/ how to address how we deal w/

CONSTRUCTIVE POSSESSION CASE viewing images from web caches in internet – in the
 Merely viewing image on CP in a web browser does poss for CP
NOT establish level of “CONTROL” necessary to - Person charged with Constructive possession
establish the act of possession - Morelli gives us elements of what constitutes K
- Court stated general principles relating to possession: - In these kinds of files, you have 2 kinds of evidence:
1) Personal Possession 1) Images that appear on screen
 KCC 2) Underlying data files (caches)
- Knowledge comprises 2 elements: awareness of - Court distinguishes the actual poss of these
object (what it is) and that they have it - Two main criminal offences today: POSS OF CP &
2) Constructive Possession ACCESSING CP – separate & distinct offences
- Accused has knowledge of the character of the object, ACCESSED  simply go to website and look at images
knowingly puts it in a place, & intends to have object POSSESSION  going out your way to save images
there for his use or benefit or the benefit of others  This case also illustrates what POSS IS NOT!
 In this case, person didn’t actually KNOW about  POSSESSION IS NOT IMAGES ON WEB CACHES – b/c
cached images, TF, NO CONTROL  no possession images are not type of files that accused person has
actually created and not temporary files actually saved
R. V. PHAM  JOINT/CONSTRUCTIVE POSSESSION + R. V. SPARLING
DIRECT vs. CIRCUMSTANTIAL EVIDENCE - S charged w/ poss of some of prohibited contraband
ISSUE  did the court err in finding that the appellant - Full-time tenant & on lease
had knowledge & control of cocaine found in bathroom - Drugs found on coffee table
 DIRECT v. CIRCUMSTANTIAL EVIDENCE - Court inferred Sparling had knowledge of drugs
RATIO  Knowledge can be inferred from R. V. GREY
circumstantial evidence  ANY ELEMENT can be - Cocaine found in bedroom in girlfriend’s apartment
inferred from circumstantial evidence - Evidence he’d sleep there 4x/wk w/ other belongings
 Two cases that court looked at in analysis are R. V. - Charged w/ poss on joint or constructive poss
SPARLING & R. V. GREY - Court found there was INSUFFICIENT EVIDENCE to
- Court was prepared to infer that P had knowledge amount to knowledge for possession
- Pham did not testify of drugs in bathroom
 INNOCENT UNTIL PROVEN GUILTY HOLDING  Stated she had knowledge based on
- C asked court to infer based on circumstantial circumstantial evidence and TF, was in possession
evidence that she HAD K of drugs in bathroom even
though she was not there and hasn’t been for few days
- HAD she testified saying she didn’t know they were
there… MAYBE she would have been acquitted
R. V. CHALK – CONTROL CASE – CONSTRUCTIVE - KCC can ALL be inferred from circumstantial evi
POSSESSION CASE  Did Mr. C have control over CP on hard drive?
ISSUE  Did the accused have “control” over the CP? - defence was that he never looked at it
DOCTRINE OF INNOCENT POSSESSION - underlying facts – once C found out authorities were
- Evidence there was CP on hard drive of computer onto him, he asked someone to destroy evi
- C relied on CONSTRUCTIVE POSSESSION - Court found that he had exercised CONTROL over CP
RATIO  when it comes to K requirement of poss, and that he exercised control over period of months
one has to have K or BE AWARE OF THE CRIMINAL - Wasn’t merely incidental for some innocent purpose
CHARACTER OF THE ITEM IN QUESTION  He KNEW that it was CP – and based on what court
- So, C must prove accused had K, AND a measure of found, it’s ONLY when he found out police might
CONTROL over item in question discover it, where he decided to delete it
- Court provided definition of control: to be in poss of  So, he KNEW what it was even though he claimed
CP, it isn’t necessary for individual to have VIEWED he didn’t look at it – TF, he CONSENTED it – and he had
material  it is element of control, including what will CONTROL over it b/c he asked someone else to destroy
be done w/ material, that is essential to poss

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DOCTRINE OF INNOCENT POSSESSION DOCTRINE OF DE MINIMUS

 ALL ELEMENTS ARE MET = KCC  Operates at common law to reserve app of crim law
- BUT NOT LEGALLY CULPABLE to serious conduct  protects accused from the stigma
Ex) You see a gun on the street – pick it up w/ intention of a conviction for trivial conduct – it does NOT mean
of bringing it to police – but on the way, you get a the act is justified; it remains unlawful, but on account
speeding ticket, and police finds it  NOT GUILTY of triviality, it goes unpunished
Ex) You know your roommate is watching CP – you take  The Law does not concern itself with trifles
laptop and bring it to police  NOT GUILTY
R. V. KUBASSEK – DE MINIMUS – 2004 - CA
- allegation of assault  act was a ‘push/shove’
resulting in complainant stumbling; he did not fall and
was not injured
- TJ found that act was DE MINIMUS  CA agreed
- reverend was pushed causing her to stumble
- Charged w/ assault – at trial  TJ found she
INTENDED to push, but DISMISSED on app of DM
- CA allowed C’s appeal & substituted conviction on the
charge of assault, but on the lowest charge possible
 SO, WHETHER SOMETHING IS DM IS WHETHER THE
CONDUCT IS CONSIDERED TRIVIAL
THE ACT REQUIREMENT: CONSENT/PROOF OF THE  When someone charged with assault, they are not
ABSENCE OF CONSENT charged contrary to s.265, but charged contrary to
- Relevant Statutory Provisions: s.266  this is the charging section of s.265
 S.265(3), 271, 273.1(1) For the purposes of this section, we’ll ONLY be talking
 How does the Crown Prove Absence of Consent? about 265(3)  no consent is obtained when
 Scenarios: Unprovoked punch; Consent fight; complainant submits or does not resist by reason of
Consent that is vitiated FRAUD
R. V. JOBIDAN – 1991 – SCR - TJ found J struck H at least 4 times more after he was
- Charged w/ manslaughter unconscious, but TJ also found that J, at the time, was
ISSUE  Does the C always have to prove absence of under REASONABLE. But MISTAKEN APPREHENSION
consent? that victim was still capable of returning punches
FACTS  consent fight; V falls unconscious & A  i.e. TJ believed J when he testified and said he
continues to hit him wouldn’t have continued hitting him had he known he
- Person commits culpable homicide when he/she was out
causes death of a person by means of unlawful act  J WAS ACQUITTED AT TRIAL b/c judge found that C
TRIAL  J was acquitted b/c Court was NOT satisfied did not prove unlawful act BRD
BARD that he had committed an unlawful act; it’s not  Reason for this finding? It was consensual fight
against the law to have consensual fight; lack of - Lack of consent is the real ingredient as an element
consent is the critical ingredient to establishing an for there to be an assault conviction
assault/unlawful act
CA  s.265 should be construed subject to common RATIO  adults can consent to the consensual
law limits re. consent is not a defence where bodily application of force, up to the point where serious
harm is intended or caused hurt or non-trivial bodily harm is caused
How does the C prove whether someone consented? JOBIDAN CONTINUED
1) 2 people agree to fight outside – not hard to prove - SCC interpreted s.265 of Code
- But imagine I’m walking behind Josh and he doesn’t ISSUE: To what extent is consent limited?
see me coming and I sucker punch him  RATIO: the limitation demanded by s.265 as it applied
UNPROVOKED PUNCH – NO WAY there’s consent to the circumstances of this appeal is one which
 UNPROVOKED / UNEXPECTED = NO CONSENT VITIATES consent b/w adults who intentionally apply

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 No such thing as IMPLIED CONSENT force causing serious hurt or non-trivial bodily harm
So, if there’s only minor hurt or trivial bodily harm, R. V. MOQUIN – DEFINITION OF BODILY HARM
then consent is still a defence… and C has to prove the - interpretation of “BODILY HARM”
absence of consent in this situation - S.2 of CC  previous tab
 Court also contemplated the TYPE OF HARM  Examples of bodily harm
- It’s the TYPE of harm that is contemplated in s.267 –  Transient and trifling must be considered together
assault causing bodily harm provisions - ex) serious wounds (gaping lacerations), if someone
 this type of harm outlined in s.2 of CC when we get had to get stitches or has fracture (interfere w/ health
to MOQUIN or comfort that is more than transient & trifling)
s.2  Defines bodily harm as any hurt / injury to  Even minor wounds (scrapes, bruises) can be
complainant that interferes w/ health or comfort of considered if they cause discomfort or hurt for more
complainant and that is more than transient & trifling than a transient period
in nature  This was the definition the SCC used in J - MAYBE individually, they might be trifling, but
TOGETHER, they can be considered bodily harm
 MOQUIN also tells us that MEDICAL EVIDENCE IS
NOT REQUIRED – it’s great assistance but not needed
R. V. CUERRIER – 1998 – SCC – HIV DISCLOSURE SCC asked how do you prove fraud?
 CUERRIER TEST (C-TEST)  2 essential elements of fraud:
ISSUE  when does the failure to disclose one’s HIV 1) Dishonest Act
status be regarded as FRAUD vitiating consent w/in 2) Corresponding deprivation or risk of deprivation
the meaning of s.265(3) - Court said dishonest act constitutes not telling smth
 “No consent is obtained where a person submits or - types of fraud that will ALWAYS undermine consent
does not resist by reason of fraud” are frauds that pertain to NATURE OF THE ACT,
FACTS  C tested + in 1992 – public health instructors QUALITY OF THE ACT, & IDENTITY of the partner
told him to use condoms & inform all prospective  In this case, issue was whether NON-DISCLOSURE
partners that he was HIV + OV HIV constitutes dishonest act w/in meaning of
- had unprotected intercourse w/ 2 complainants fraud
- Did not disclose HIV status HOLDING  Where a person conceals or fails to
- Both complainants testified they consented to having disclose their HIV+ status, that CAN constitute a fraud
unprotected sex w/ him… but had they known he was which MAY vitiate consent to the sexual activity in Q.
HIV+, they wouldn’t have  i.e. MAYBE – depends on NATURE OF THE RISK
- Complainants did NOT become HIV+ - The actus reus the C has to prove is that the dishonest
act had the effect of exposing the person consenting to
a SIGNIFICANT RISK OF SERIOUS BODILY HARM
DISSENTING OPINION OF R. V. CUERRIER R. V. MABIOR – 2012 – SCC – HIV DISCLOSURE
 Justice McLachlin & others find the definition too - Recall in Cuerrier, that the Court set out the test for
restrictive establishing fraud vitiating consent in context of non-
 But what if a man goes to a bar and lies about his disclosure of HIV
profession to get a woman – that’s the basis that the  IN THIS CASE, Court focuses on aspect of C-test that
complainant uses to say she wouldn’t have consented requires C to prove that dishonest act EXPOSED THE
– this was the concern of the majority – if they don’t COMPLAINANT TO A SIGNIFICANT RISK OF BH
place limits on what fraud can constitute, then they  What does this mean? – This is what court looks at
would have a whole lot more of these stupid cases  Court finds the C-test valid in principal; and
AT THE END OF THE DAY: attempts to build greater certainty into how its applied
C tells us by way of the test, that non-disclosure of HIV WHEN DOES SIGNIFICANT RISK OF BH ARISE?
to a prospective partner, MAY BE FRAUD THAT RATIO  where there is a REALSTIC POSSIBILITY OF
VITIATES CONSENT IF that non-disclosure has the effect TRANSMISSION OF HIV, a significant risk of BH is
of EXPOSING THE PERSON CONSENTING TO established – i.e. if no realistic possibility of
SUBSTANTIAL RISK OF BODILY HARM! transmission, then failure to disclose does NOT
constitute a fraud vitiating consent

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TO SUM UP: What is a REALISTIC POSSIBILITY OF TRANMISSION?

1) FAILURE TO DISCLOSE (dishonest act) = amounts to  Realistic possibility requirement will be NEGATED if
a fraud where the complainant would NOT have the accused’s VIRAL LOAD IS LOW
consented had they known the accused was HIV+ and
the sexual contact poses a SIGNIFICANT risk of BD  SINCE THESE CASES, SIGNIFICANT ADVANCEMENTS
(deprivation) in Science & Technology for HIV maintenance
2) SIGNIFICANT RISK OF BD is established by a - Given the types of meds available, HIV+ individuals,
REALISTIC POSSIBILITY OF TRANSMISSION OF HIV generally speaking, do NOT have a realistic possibility
3) A REALISTIC POSSIBILITY OF TRANSMISSION is of transmission anymore
negated by evidence of a LOW VIRAL LOAD & A
CONDOM BEING USED
R. V. HUTCHINSON – 2014 – SCC – VITIATED CONSENT - We have to look at it in two ways:
DUE TO FRAUD 1) Did she ever consent in the first place? B/c having
S.273.1(1) and (2) sex was conditional upon wearing a condom – tf, you
(1)  Consent must be present at the time the sexual can argue she did not consent to SA in Q
activity in Q takes place 2) Did her consent become VITITATED? B/c he deceived
(2)  For the purposes of ss(1), no consent obtained her; defrauded her to whether he was using condom
if… (a)(e)  Dishonest act + Deprivation  this is fraud
FACTS  accused poked holes in condom; he knew  Court in H says 2-step process in analyzing whether
that complainant would NOT have consented to there was no voluntary agreement
unprotected intercourse; she became pregnant 1) Determine whether evidence establishes whether
ISSUE  the proper approach to determining whether there was no voluntary agreement  consenting
consent was vitiated includes 3 different things:
 Do we use 265(3) or 273.1(1)? a) Specific sexual conduct –
 This case deals w/ proper approach to consent b) Sexual nature of activity –
273.1 – “consent means, the voluntary agreement of c) Identity of partner – specific person
the complainant to engage in the sexual activity in Q” 2) Look at circumstances and see if there was
- CA shows 2 approaches to consent: MAJORITY found anything that vitiated consent (after looking at
that condom was an “ESSENTIAL FEATURE” of the whether the complainant consented)
sexual activity in Q – there she did not consent. The  Going back to case, issue was whether H sabotaging
dissenting justice found that she DID consent to the SA the condom means there was no consent or whether
in Q, but that a new trial was required to determine if the consent was vitiated by fraud
her consent was vitiated by fraud  Court asked “What does ‘sexual activity in question’
mean?  re. s.273.1
RATIO: - It does NOT include the conditions or qualities of the
1) Fraud vitiates consent in sexual assault physical act; it is limited to actual physical act(s), the
2) Agreement to engage in sexual activity in s.273.1(1) sexual nature of the activity, and the ID of the partner
is more than consent to the application of force under
s.265 - Court stated there was consent… now had to
determine if consent was vitiated by fraud
- Court also makes specific note that financial - We know there was a dishonest act
deprivation, sadness, stress from being lied to are all - What about deprivation?  Significant risk to BH?
enough to make out a deprivation that could vitiate  Court ended up determining that depriving a
consent due to fraud – C must prove the absence of woman of a choice to either increasing risk of
consent BRD pregnancy is a SERIOUS SIGNIFICANT BODILY HARM
ESTABLISHED BY THE C-TEST  SUFICIENT FOR FRAUD

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OMISSIONS – JUSTICE DEAN FAGAN V. COMMISSIONER OF METROPOLICAN

POLICE – 1968 – ENG CA
S.21(1)(b)  Deals with Parties to an Offence – - F was directed to park car along curb by officer
section states that everyone is a party to an offence, - While doing so, drove onto foot of officer by accident
even if you OMIT an offence – so you can be held - Tells F to drive forward & park car, but F refuses
criminally responsible if you omit
S.219(1)(b)  Criminal Negligence – everyone is 1) Mere omission to act cannot amount to an assault;
criminally negligent who OMITS to do something that some intentional act must have been performed
it is his duty to do 2) Must be actus reus + mens rea AT THE SAME TIME
 Both of these deal with provision in CC where you Actus reus = action causing effect on victim’s body
can be held criminally liable for not doing anything Mens rea = intention to cause that affect
BOTH MUST occur to constitute crime
3) Not necessary that mens rea should be present at
INCEPTION of the act; it can be superimposed on
existing act… however, subsequent inception of mens
rea cannot convert an act which has been completed
w/o mens rea into an assault
4) Court held that actus reus can be series of actions,
which constitutes continuous act
 As soon as Fagan REFUSED to move the car, the act

was deemed continuous
Question Becomes: R. V. MILLER – 1983 – HOUSE OF LORDS
1) How do legal duties arise? - M fell asleep on his mattress while smoking cig
- Sometimes by statute  s.215, 216, 217, 217.1 - When he woke up, mattress was on fire – didn’t call
2) Can the court create legal duties (Common law)? for help – not did he put out the fire – simply moved to
- Remember s.9(a)  NWS, anything in this act, or any another room, went back to sleep and fire spread
other act, no person shall be convicted or discharged - Woke up to police & fire personnel arriving – said he
under s.30 of an offence at common law didn’t have anything to put the fire out with, so left
 so, looking at this section, the answer would be no  Charged with Arson
 What it’s saying, in essence, is that nobody can be House of Lords
convicted at common law 1) A person who creates a dangerous situation may be
under a duty to take reasonable steps to avert that
danger, by himself, or by sending for or calling help
2) There’s “no rational ground for excluding from
criminal liability conduct which consists of failing to
take measures that lie within one’s power to
counteract that danger, if at the time of such conduct
one’s state of mind is such as constitutes a necessary
ingredient of the offence”
- HOL states there was obligation although no statute
MOORE V. R – 1979 – SCC - There was NO statutory or common-law duty for
- man in Victoria rode through red light on bike, and person (unless operating a motor vehicle or vehicle) to
police officer on motorcycle pursued him – when identify him or herself to the PO
officer stopped man, he refused to give his name - Despite that, the court decided when a person is
- Charged w/ unlawfully & wilfully obstructing a peace actually seen committing an illegal act in front of an
officer in the execution of his duties officer, this is different than just investigating an
ISSUE – What was Mr. Moore’s duty to ID himself? Did offence. Officer was under a duty to attempt to ID the
he have a duty to ID himself to the officer wrongdoer & failure to ID himself did constitute an
STRONG DISSENT – stated no common law or stat duty obstruction of officer in performance of his duties

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R. V. THORNTON – 1991 – OCA  1993 – SCC R. V. BROWNE – 1997 – OCA

- T knew he was HIV+ (tested twice), yet donated - accused & friend & fellow drug dealer G were
tainted blood to Red Cross (Detected & put aside) stopped by police & searched for drugs
- Charged w/ common nuisance under s.180(2) - No drugs found & they were released
ISSUE #1  Can a legal duty w/in the meaning of - G swallowed plastic bag containing crack cocaine to
s.180(2) be one according to common law, or must it avoid detection
be a duty imposed by statute? - After she & accused were released, she tried to
 For our purposes, this section states that everyone unsuccessfully throw up bag
commits a common nuisance who does an unlawful act - Accused undertook to take her to hospital – called for
or fails (so omits) to discharge a legal duty & thereby, taxi – G shortly died after arriving
endangers the livers, safety, health, of others - Accused charged w/ criminal negligence causing
CA  Said LEGAL DUTY refers to duty imposed by death of G by failing to render assistance to her by
STATUTE OR COMMON LAW (this is contrary to s.9) taking her immediately to hospital after undertaking to
render such assistance
ISSUE #2  Was there a common law duty?
CA  said common law duty to refrain from conduct TJ  concluded that accused’s statement that he
which DF foresees may cause serious harm to other would take G to hospital constituted an “undertaking”
persons. TF, legal duty w/in meaning of that term in w/in meaning of s.217 of the CC and that by using a
s.180(2) taxi instead of calling 911, the accused showed a
wanton & reckless disregard for G’s life contrary to
APPEALED TO SCC s.219(1) of the CC
- SCC held that s.216 applies (which had been the TJ’s s.217 – everyone who undertakes to do an act is under
ruling) – said duty was breached by NOT disclosing legal duty to do it if an omission to do that act is or
blood was HIV+ may be dangerous to life
- T VIOLATED HIS DUTY TO DISCLOSE HIV STATUS s.219(1) – everyone is criminally negligent who a) in
- SCC seems to have avoided or did not care to discuss doing anything, or b) in omitting to do anything that it
the issue of the common law duty & tf, no answer is his duty to do, shows wanton or reckless disregard
about s.9(a) for the lives or safety of other persons
R. V. PETERSON – 2005 – CA  So, duty is in s.217, and once TJ decides that what
- accused neglected father’s needs to point where he says amounts to undertaking, TJ feels there’s a LD
father’s life had been endangered
- aggravating factor was that accused lived in same CA  said conviction for criminal negligence causing
house as father & was in position of trust death carries max penalty of life imprisonment. The
- Father of accused suffered Alzheimer’s word “undertaking” in s.217 must be interpreted in
 Accused convicted w/ failing w/o lawful excuse to this context. The threshold definition must be
provide (omission) necessaries of life for father, sufficiently high to justify such serious penal csq
contrary to s.215 of CC – “under his charge”  mere expression of words indicating a willingness
s.215  everyone is under a legal duty to do an act cannot trigger the legal duty
a) as a parent, foster parents, etc… to provide  nothing short of a binding commitment can give
necessaries of life for a child under age of 16 years rise to a LD contemplated by s.217
b) provide necessaries of life to spouse or common-law  OCA FOUND NO UNDERTAKING w/in MEANING OF
c) provide necessaries of life to person under his s.217, TF, NO LEGAL DUTY, TF, NO BREACH of s.219
charge if that person:
i) is unable – due to illness, mental disorder, etc. Most important to note:
ii) unable to provide himself w/ necessaries of life Did what he say amount to an undertaking?
SUMMARY OF OMISSIONS
1) Omission can constitute actus reus in certain circumstances
2) In order for omission to be a crime, must have legal duty – LD refers to duty imposed by statute or com law
3) Omission / failure to act will constitute actus reus & give rise to liability only when law imposes duty to act
4) There is no LD to aid someone who is in peril, even if the aid can be done w/o any risk to him or herself

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VOLUNTARINESS R. V. RABEY – 1980 – SCC  CONSCIOUSNESS IS A

R. V. KING – 1962 – SCC  WILLING & VOLUNTARILY SINE QUA NON
- accused went to dentist by appointment – injected w/ - UofT student (20 yo) studied together w/ 2 males,
drug – earlier, he was required to sign a printed form lunch together, pug together
containing warning not to drive after anaesthetic until - victim wrote letter to friend which accused found
head had cleared – after he work up, nurse warned him while studying together – put it in his pocket, read later
not to drive until head was “perfectly clear” at home, became upset, angry & confused he says
- he replied he intended to walk - next day, during lab, put a rock in his pocket, said he
- Accused said he heard no such warnings & did not intended on taking it home to study it – went to watch
remember signing any form containing a warning a squash game, invited victim, no one there when they
- remembered getting into his car & that while driving, got there
he became unconscious – ran into rear or parked car - when they were leaving, asked victim what she
thought about Gord (she mentioned in letter) – said he
SCC was just friend  struck her in the head twice w/ rock
1) No Actus Reus unless it’s the result of a WILLING
MIND at liberty to make a definite choice or decision - C always beard BOP a voluntary act
2) No act can be a criminal offence unless it is done - Consciousness is a sine qua non (ESSENTIAL
VOLUNTARILY. Consciousness is an essential condition CONDITION) to criminal liability – a man is
for criminal liability responsible ONLY for his conscious intentional act
- No act can be criminal unless done voluntarily
- Act that is involuntary entitles accused to complete &
unqualified acquittal
R. V. PARKS – 1992 – SCC  INVOLUNTARY / SLEEP- R. V. LUCKI – 1955 – SASKATCHEWAN

WALKING CASE - accused made right turn while operating vehicle at
- P fell asleep in living room, but few hours later, got 20-25 km/h, and while doing so, skidded over onto left
up, put on jacket & running shoes, grabbed car keys & side of road & as a result, collided to another car
keys to in-laws’ home, drove 23 km to their home - Charged under The Vehicles Act of the Province
- parked in somewhat confined underground parking
area, took a tire iron from car & entered home Judge
- got knife from kitchen & went to in-laws bedroom 1) Found that his car got onto the wrong side of the
- strangled father in-law until unconscious & at some road by an INVOLUNTARY ACT, caused by the
stage inflicted cuts to head & chest condition of the road
- father in-law recovered 2) It was NOT faulty driving that placed him in
- but accused repeatedly stabbed mother-in-law & position where he ended up
brutally beat her w/ blunt instrument  died  TF, this is INVOLUNTARY ACT, for which he is not to
- P said he was SLEEPWALKING whole time, and TF, he blame
could not have been responsible for any acts that he
committed while sleepwalking
 ACQUITTED
1) Voluntariness is part of actus reus requirement
2) Generally, where it can be shown that the conduct
of accused is NOT of conscious mind, then no AR
R. V. WOLFE – 1975 – OCA – reflex = involuntary Court of Appeal
- man prohibited by owner previously, came into bar, 1) Action was described by TJ as a “reflex action”
and he wouldn’t leave upon owner’s (Wolfe’s) request 2) Convicted at trial, but conviction set aside by CA b/
- W called police, & while doing so was sucker punched c there was NO INTENT (intention is required)
- W spun around & hit him w/ phone in head – Charged 3) Reflex Action  TF, INVOLUNTARY
w/ assault causing bodily harm

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R. V. SWABY – 2001 – CA VOLUNTARINESS SUMMARY

1) Voluntary conduct is a NECESSARY ELEMENT FOR
COURT CRIMINAL LIABILITY. Voluntariness is part of the actus
1) Voluntary conduct is necessary element for reus requirement. No act can be criminal unless it is
criminal liability. That requirement applies even if the done voluntarily
provision creating the offence does NOT expressly
require one 2) No actus reus UNLESS it’s the result of a WILLING
2) There is NO general CC stipulation that the guilty MIND at liberty to make definite choice/decision. In
act be voluntary. The requirement exists by virtue of order for act to fulfill actus reus, it has to be DONE
judicial reasoning (common law) PURPOSEFULLY, at one’s OWN VOLUNTARY/FREE
3) Act must be voluntary for the actus reus to exist WILL. A defence that the act is involuntary entitled
the accused to a complete & unqualified acquittal
3) Generally, where it can be shown that the conduct

is NOT of his CONSCIOUS MIND, then there is NO AR
4) Crown ALWAYS BEARS BOP VOLUNTARY ACT (BRD)
HOMICIDE & CAUSATION S.229  MURDER DEFINITION

CC – SS.222-225, 229-238, 745, 745.6 (a) Culp Hom is MURDER where person who causes
death of human being:
HOMICIDE 1) Means to cause his death OR
S.222 = DEFINITION  a person commits homicide 2) Means to cause him BH that he KNOWS is likely to
when, directly or indirectly, by any means, CAUSES cause death, and is reckless whether death ensues
death of a human being (b) where a person, meaning to cause death to HB or…
- s.222  CULPABLE vs. NON-CULPABLE HOMICIDE by accident or mistake causes death
- s.222(2)  Homicide is EITHER culpable or non-culp (c) where a person… does anything he knows or ought
(3)  homicide that is NOT culpable is NOT an offence to know is likely to cause death
(4)  culpable homicide is MURDER or
MANSLAUGHTER or INFANTICIDE S.231  CLASSIFICATION OF MURDER
(5)  a person commits CULPABLE homicide when 1) MURDER IS FIRST DEGREE OR SECOND DEGREE
causes DEATH of a HUMAN BEING 2) 1st Degree = Planned & Deliberate
 By means of an unlawful act 3/4) STATUTORY examples of 1st degree
 By criminal negligence  Killing a police officer
 By causing that human being, by threats or fear of 5) Irrespective of whether murder is P&D, it’s 1st
violence or by deception, to do ANYTHING that causes degree when death is caused by that person while
death committing or attempting to commit an offence under
 By willfully frightening that human being, in the case one of the following sections:
of a child or sick person  SEXUAL ASSAULT, AGGRAVATED ASSAULT,
CAUSATION KIDNAPPING OR FORCIBLE CONFINEMENT, HOSTAGE
 Generally - causal relationship b/w conduct & result TAKING, HIJACKING AN AIRCRAFT
- Provides a means of connecting conduct w/ resulting 7) All murder that is NOT 1st degree = 2nd Degree
effect, typically injury (or death)
- Certain offences in CC required not only that offender S.234  MANSLAUGHTER
commit prohibited act, but also that the act caused a  NO INTENTION to cause death or BH
particular result - Usually arises when someone does something that is
- Crim responsibility for causation must be established criminally negligent that results in death or someone
in BOTH FACT & LAW (R. v. Nette at 44) does an unlawful act and b/c of that, someone dies
FACTUAL CAUSATION: requires an inquiry into how
the victim came to his or her death, in a medical,

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mechanical, or physical sense, and the contribution of

the accused to that result – i.e. But for the act, would
death have arose?
LEGAL CAUSATION: addresses moral element of
whether or not the accused should be HELD
RESPONSIBLE in law for the death (Nette at 45)
CRIMINAL STD OF CAUSATION: The accused’s conduct
must be contributing cause of the result outside of
the DM range
 SMITHERS CASE
 SO ONE TEST FOR CAUSATION

- Factual causation + Legal causation
SMITHERS – SCC – 1978 FACTS
SMITHERS TEST  for causation applied to ALL TYPES - Smithers was black & the victim was making racial
OF HOMICIDE – murder & manslaughter (*but separate slurs towards him
test for 1st degree – Harbottle) - After game, S ran up to Cobby and he doubled over
 Requires accused’s act be A SIGNIFICANT - S kicked him
CONTRIBUTING CAUSE OF DEATH BEYOND THE DE - C stopped breathing & was dead before hospital
MINIMUS RANGE. Thus, the unlawful act remains the - Cause of death was determined to be spontaneous
LEGAL CAUSE of death even where the act by itself aspiration from vomit  Determined by autopsy
would not have caused death as long as it was BEYOND - So FACTUAL CAUSATION = aspiration b/c of vomit
DE MINIMUS - Evidence given at trial that the reason Mr. C
spontaneously aspirated was b/c epiglottis had
ISSUE  Was the KICK a significant contributing cause malfunctioned  could this happen in every case? –
of death to attract criminal liability? NO WAY… but that happened to Mr. C b/c of some
HOLDING  CAUSATION WAS ESTABLISHED underlying issue that Mr. S would not be aware of
- YOU TAKE YOUR VICTIMS AS YOU FIND THEM
THIN-SKULL RULE  Mr. S convicted of manslaughter  appealed
 BLAUE CASE
- “You take your victims as you find them”  In order to answer the ISSUE stated, the court had
- The Q is NOT whether if he was to deliver the kick to to answer WHAT THE LEGAL TEST FOR CAUSATION was
someone else, would it result in death… it’s whether - Court determined that kick, for legal causation to be
the KICK would have been a CONTRIBUTING CAUSE of established, had to be a CONTRIBUTION TO DEATH
death outside DM range outside the DM range
- So, C had BOP kick caused vomiting & that caused D
HARBOTTLE – 1993 – SCC NOW 1st Degree H Test  S&I Cause of death
STD of causation in the case of 1st degree (s. 231(5))  accused’s conduct MUST play active role, but
doesn’t mean they actually have to be the one to pull
H TEST  SUBSTANTIAL & INTEGRAL cause of death the trigger of the gun
- Crown found that by holding her legs down, it
ISSUE  Was the accused’s participation such that he prevented her from resisting the murder
could be found guilty of 1st degree? Did the C prove - TF, found that Mr. H’s conduct was S&I cause of
that his conduct was a “S&I cause of death?” death
HOLDING  Court found accused’s conduct in holding 5-PART TEST for 1st Degree Murder
legs down, while strangled to death WAS SUFFICIENT 1) Accused was guilty of wtv the underlying crime was
causation standard for this particular case  233(5) – there has to be an underlying offence
1st degree requires HIGHER or STRICTER causation std 2) Accused was actually guilty of the murder
3) ‘A’ participated in murder in manner that was S&I
Smithers  Contributing cause outside DM range 4) NO INTERVENING ACT occurred (A no longer conn)

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5) Underlying crime & murder were apart same series

NETTE – 2001 TALBOT AND F(D.L.)
 Court reviewed Standard of Causation for TALBOT – CA - 2007
MANSLAUGHTER, 2nd DEGREE, 1st DEGREE ISSUE  whether death was caused by INITIAL blow or
- UPHOLDS SMITHERS TEST but re-words it to SUBSEQUENT kick
“Significant contributing cause” (vs. outside DM range)  Court reviews factual & legal causation
- Affirmed H-Test RATIO: C has to prove causation BRD  aka that the
- But what about 2nd Degree? – What causation kick was a contributing cause of death
standard should apply?
 TO BE CLEAR, there’s ONE standard for causation for F.(D.L.) – 1989 - CA
murder & manslaughter  SMITHERS TEST  There WAS sufficient causal connection
 But in the case of 1st degree, there are additional - However, the court reviews scenarios where,
instructions for the Jury  H-TEST particularly in the context of dangerous driving causing
BH, that certain scenarios will raise causation issues
 CAUSATION ISSUE – some cases where you look at
chain of causation & events, and you may not want to
hold someone responsible for being a contributing
cause when they really didn’t have any control
 EX) Guy driving reckless causes another drive to hit
a kid and kill him – not really his fault
BLAUE – 1975 – CA MAYBIN – 2012 – SCC
 MANSLAUGHTER CONVICTION (knife attack) CAUSATION & INTERVENING EVENTS/CAUSES
- victim of knife attack died after refusing to have blood ISSUE  Was the bouncer’s conduct an intervening
transfusion (religious grounds) event that disrupted the chain of causation?
- C conceded that a blood transfusion would have  2 different analytical approaches to reconciling the
LIKELY saved her life; i.e., failure to have blood accused’s culpability & connection b/w acts & death
transfusion was A cause of death - FACTUAL & LEGAL CAUSATION
 BUT, there can be more than 1 cause of death
ISSUE  Whether or not the conduct of the accused is  NEITHER approach is determinative – simply
a SIGNIFICANT contributing cause (doesn’t have to be analytical tools
the only one) - This test is the same – SMITHERS TEST
RATIO  If at the time of death, the original wound is FACTS

the OPERATING CAUSE & a SUBSTANTIAL CAUSE then - 3 accused charged – 2 brothers + bouncer
the DEATH CAN PROPERLY BE SAID TO BE THE - 2 bros assaulting victim in bar over game of pool
RESTULF OF THE WOUND even though some other - 1 brother struck blow – rendered V unconscious 
cause of death is also operating bar bouncer subsequently hit victim in head & carried
him outside – victim died later at hospital
 YOU TAKE YOUR VICTIMS AS YOU FIND THEM  MEDICAL EVIDENCE – inconclusive – could NOT say
Blau reinforces the Thin-Skull Rule WHICH particular blow to head caused cause of death
TRIAL JUDGE  acquitted all 3 b/c of equivocal
medical evidence
CA  determined accused’s assaults were FACTUALLY
contributing cause of death – b/c BUT FOR THEIR
ACTIONS, THE ACCUSED WOULD NOT HAVE DIED
- Also held that risk of harm caused by intervening
actor could have been reasonably foreseeable to Acc.
- i.e. bouncer’s actions were NOT intervening cause
that disrupted chain of causation for Maybin bros

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SCC  IF THE C CAN’T PROVE BRD THAT ACCUSED

CAUSED THAT END RESULT, IF THERE IS A DISRUPTION
OR BREAK IN CHAIN OF CAUSATION, THEN THE CROWN
CANNOT PROVE CAUSATION BRD
 Couple of different approaches, analytical
approaches to reconciling accused’s culpability b/w
actions & death:
1) REASONABLE FOREEABLE APPROACH – this is the
approach they applied at CA  intervening act that is
REASONABLY FORESEEABLE may NOT break chain
2) INTENTIONAL INDEPENDENT ACT APPROACH –
situation where an intervening act, by a third party,
may make it unfair to hold accused responsible for
subsequent death & very well may break chain
THE FAULT REQUIREMENT  Different crimes may have different mens rea (or
MENS REA mental element) fault requirement that is attached to
 refers to criminal intent necessary for it or required for there to be guilt
particular/specific crime & which the C must prove BRD The Q is: DOES THE CRIME REQUIRE A “SUBJECTIVE”
- In the case of TRUE CRIMES (acts considered MENS REA FAULT REQUIREMENT OR IS IT AN
criminal), there is a presumption that a person “OBJECTIVE” MENS REA FAULT REQUIREMENT?
SHOULD NOT BE HELD LIABLE for the wrongfulness of Another Q: HOW DO WE DETERMINE THE ACCUSED’S
his act IF THAT ACT IS WITHOUT MENS REA STATE OF MIND?
- Mental element may be either intention to do OBJECTIVE/SUBJECTIVE DISTINCTION

immediate act or bring about the consequences, or - Common law rule is that crimes are PRESUMED to
recklessness as to such act or consequence have SUBJECTIVE FAULT REQUIREMENT (accused is
- Some crimes require INTENTION & NOTHING ELSE, aware of the risk)
but MOST can be committed either intentionally or - W/ SUBJECTIVE STD – all of the accused individual
recklessly – some crimes require particular kind of factors are taken into account – ex. race, gender,
intention or knowledge poverty, experience, etc.
- There are SOME crimes that do NOT REQUIRE ANY - OBJECTIVE MENS REA (negligence) – NO PERSONAL
PARTICULAR STATE OF MIND but DO REQUIRE FACTORS are taken into account except where they
negligence  Negligence is kind of legal fault, and in relate to INCAPACITY
that respect, it’s similar to crimes requiring mens rea
 YET OTHER CRIMES DO NOT REQUIRE MENS REA OR Important distinction b/w subjective std & objective
EVEN NEGLIGENCE  absolute liability approach to proof is emphasized in the cases
HUNDAL – SCC – 1993 – DANGEROUS DRIVING FAULT THEROUX – 1993 – SCC
REQUIREMENT - accused, the directing mind of company involved in
- dangerous driving causing death – court called to residential construction, was charged w/ fraud
decide fault requirement for dangerous driving: - accused took deposits from people towards building
SUBJECTIVE OR OBJECTIVE? house in subdivision & told them their deposits were
- Mr. H driving overloaded dump truck – accident insured
occurred in heavy afternoon traffic on wet four lane - the deposits were NOT insured & he knew this,
street in Vancouver. Deceased waited at intersection however, he honestly believed the project would be
for red light & was proceeding through on a green light completed and therefore that the deposits would be
- Crossed the cross-walk of two west-bound lanes safe – project was NOT finished due to bankruptcy
when his car was struck broadside by truck in east- - Many people completely lost deposits – convicted of
bound passing lane FRAUD – appeal dismissed by Quebec Court of Appeal

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- Appellant testified he thought he could not stop when ISSUE  whether the fact that he HONESTLY BELIEVED
light turned amber – sounded his horn & proceeded that the projects would be completed negates the
through intersection GUILTY MIND or MENS REA of the offence. Required
- Crossed the cross-walk of two west-bound lanes the Court to examine question of what constitutes the
when his car was struck broadside by truck in east- mens rea for the offence of fraud
bound passing lane
- Appellant testified he thought he could not stop when - Term mens rea  properly understood, does NOT
light turned amber – sounded his horn & proceeded encompass ALL of mental elements of crime
through intersection  Actus reus has own mental element; act must be
VOLUNTARY act of the accused for actus reus to exist
SUBJECTIVE TEST: seeks to determine what was Mens Rea = guilty mind, wrongful intention of accused
ACTUALLY in the mind of accused at moment offense is - FUNCTION in Crim Law is to PREVENT conviction of
alleged to have been committed. the MORALLY INNOCENT – those who do NOT
 Focus is on whether the specific accused given his understand or INTEND the consequences of their acts
personality, situation, & circumstances, actually - Typically, mens rea concerned w/ CONSEQUENCES of
intended, knew or foresaw the consequence, and/or prohibited actus reus. Did the accused INTEND to cause
circumstance as the case may be consequences that occurred or in the case of some
 i.e. whether he “could”, “ought”, or “should” have crimes, if he didn’t intend to cause the csq, was he
foreseen or whether reasonable person would have RECKLESS or WILFULLY BLIND & TF, caused the csq?
foreseen is NOT RELEVANT CRITERION
- In trying to ascertain what was going on in his mind, - Where actus reus is NEGLIGENCE & ABSOLUTE
as the subjective approach demands, the trier of fact LIABILITY OFFENCES  the test for mens rea is
may draw reasonable inferences from accused’s SUBJECTIVE – the test is not whether a reasonable
actions or words at the time of his act or in the person would have foreseen the csq of act, but
witness box – the accused may or may not be believed whether the accused subjectively APPRECIATED those
csq at least as a POSSIBILITY
OBJECTIVE TEST: used for crimes of negligence is one - i.e. does one subjectively understand that their
requiring a marked departure from the standard of actions COULD result in a prohibited outcome?
care of a reasonable person. There is NO NEED to
establish the INTENTION of the particular accused.  Court looks to the ACCUSED INTENTION & the
The question to be answered under the objective test FACTS as the accused BELIEVED them to be. Q is
concerns WHAT THE ACCUSED “SHOULD” or “OUGHT” whether the accused SUBJECTIVELY APPRECIATED
to have known that certain csq could follow from his/her acts
 C need NOT, in every case, show precisely what
THOUGHT was in accused mind at time of act… in
certain cases, subjective awareness of csq can be
INFERRED from act itself, barring some explanation
casting doubt on such inference
MULLIGAN – 1974 – OCA ORTT – 1968 – OCA
- What a man does is often the best evidence of the - accused charged w/ non-capital murder following
purpose he had in mind. The probability that harm will death of McPHee. Deceased died as a result of vicious
result from man’s act may be SO great, and SO assault in which 25 knife wounds inflicted on her
apparent, that it compels an inference that he actually - Appeal from conviction of non-capital murder – ISSUE
intended to do that harm. Nevertheless, intention is a was the charge the TJ gave jury w/in which TJ
state of mind. The circumstances and probable suggested there was an onus on the accused to prove
consequences of a man’s act are no more than his incapacity to have the specific intent necessary
evidence of his intention. For this reason, this Court due to drunkenness
has often said that it is misleading to speak of a man - TJ had charged jury that intention of a person can be
being PRESUMED always to intend the natural & judged by what he SAYS or what he DOES. The TJ
probable csq of his acts stated that a person is PRESUMED to have intended

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- The accused intention is always a fact in issue & like the natural csq of his acts
any other fact in issue, it is to be determined by a
consideration of all the evi including the accused acts, HOLDING  it is error in law to tell a jury it’s a
his utterances, and any other ccs which might shed PRESUMPTION of law that a person intends the
light on his state of mind and that includes his natural csq of his acts – the word presumption alone
testimony if he chooses to testify creates difficulty in that it may suggest an onus on the
accused. The difficulty will not arise if the use of the
word presumption is AVOIDED. The court went on to
state that it is acceptable if a jury is told that generally
it is a REASONABLE INFERENCE to draw that a man
INTENDS the natural csq of his acts
 Ex) if man points gun at another & fires it, jury may
reasonably infer he meant to cause his death or to
cause him BD he knew was likely to cause death & was
reckless whether death ensued or not
R. V. WALLE – 2012 – SCC SUMMARY OF SUBJECTIVE / OBJECTIVE DISTINCTION:
- Juries (and judges) are permitted to make the  Following are SUBJECTIVE states of mind (the basis
“COMMON SENSE INFERENCE” that a sane & sober of MOST criminal liability):
person intends the natural & probable csq of his or - INTENTION
her actions - WILDFUL BLINDNESS
 How do you tell them that? - RECKLESSNESS
Instruct the juries along the lines that “A person  In trying to ascertain what was going on in the
usually knows what the predictable csq of his or her accused mind as the subjective approach demands, the
actions are, and means to bring them about.” trier of fact may draw reasonable inferences from the
accused actions or words at the time of his act or in
the witness box (or both). The accused may not be
believed
OBJECTIVE State of Mind (subjective

awareness/intention are irrelevant):
- NEGLIGENCE (different than negligence in a civil
liability context)
FAULT FOR PUBLIC WELFARE OR REGULATORY SAULT STE. MARIE CASE – 1978 – SCC
OFFENCES - case about s.32(1) of Ontario Water Resources Act.
- Concerned with protecting public & social interests – - contract b/w city of SSM w/ garbage disposal co.
traffic offences, sales of impure food, violation of - the way the gdc designed their dump caused runoff
liquor laws, tobacco sales, pollution, etc. into nearby creek & river
- pollution resulted & the co was convicted of a breach
COMMON LAW of s.32(1) of TOWRCA  city ALSO charged under that
- Until the seminal case of SSM, in the case of some  section provides that every mcpy or person that
offenses argued not to be truly criminal, the choice for discharges, or deposits, or causes, or permits the
the courts was b/w requiring the C to establish: discharge or deposit of any material of any kind into
1) Full Subjective Mens Rea, OR any water course, or on any shore or bank thereof is
2) Absolute Liability  (at the time also called strict guilty of an offence
liability) rested MERELY on PROOF of an ACT (actus - Distinction b/w TRUE CRIMINAL OFFENCES & PUBLIC
reus) w/ NO requirement of any form of fault (mens WELFARE/REGULATORY OFFENCES  debate whether
rea) PW/RO should be TRULY criminal, tf, C must establish
mental element (mens rea), or if they should be
absolute liability offences (ALO) (no mens rea
SCC CONCLUDED THERE SHOULD BE 3 CATEGORIES OF required to be prove, just the actus reus)

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OFFENSES RATHER THAN TRADITIONAL TWO: - Various arguments advanced in jtfn of AL in PWO, &
1) OFFENCES WHICH ARE CRIMINAL IN THE TRUE arguments were advanced against AL
SENSE  which mens rea, consisting of some positive - Court found that arguments of greater force are
state of mind such as intent, knowledge, or advanced AGAINST AL
recklessness, must be proved by prosecution + AR
SCC
2) STRICT LIABILITY OFFENCES (SLO)  C only have to - decided there’s a halfway house b/w full subjective
prove BRD the PROHIBITED ACT – leaving it open to mens rea & AL
accused to avoid liability by proving that he took ALL - concluded that proper approach is to relieve C of
REASONABLE CARE. This involves csd of what a BOP mens rea having regard to virtual impossibility in
reasonable man would have done in the ccs. The most regulatory cases of provoking wrongful intention.
defense will be available IF the accused REASONABLE In a normal case, the acc alone will have knowledge of
BELIEVED in a mistaken set of facts which, if true, what he has done to avoid the breach & it is not
would render the act or omission innocent, OR if he improper to expect him to come forward w/ evi of
took ALL REASONABLE STEPS to avoid the particular due diligence
event - While prosecution must PBRD that DF committed
prohibited act, the DF must ONLY establish on the
3) ABSOLUTE LIABILITY OFFENCES (ALO)  BOP that they took reasonable care (i.e. due diligence/
prosecution must PBRD that DF committed prohibited that he was not negligent) - SLO
act. It is NOT open to accused to exculpate himself by
showing he was free of fault (took reasonable care)
PWO would, prima facie, be in the SECOND WHOLESALE TRAVEL GROUP INC. – 1991 – SCC
CATEGORY (SLO) – An offence of this type would fall in - Distinction b/w TRUE CRIMES (Criminal offences) and
the FIRST category ONLY IF such words as WILFULLY, REGULATORY OFFENCES was revisited
WITH INTENT, KNOWINGLY, or INTENTIONALLY are - WTG sold vacation packages which it advertised as
contained in the statutory provision creating the being at “wholesale prices” when, in fact, they were
offense. NOT wholesale prices at all. Company was charged
 ex of PWO) Pure food laws, motor vehicle & traffic with 5 counts of false / misleading advertising
regulations, sanitary building and factory laws - In their judgment, the Court stated that it is true that
- ALO would be those in respect of which the LGL has the availability of imprisonment as a sanction for
made it clear that guilt would follow proof merely of breach of a statute might be taken to indicate that the
the proscribed (banned) act provision is criminal in nature (1st category in SSM).
 ex) speeding HOWEVER, that fact alone is NOT dispositive of the
REFERENCE RE: S.94(2) OF MOTOR VEHICLE ACT (BC) character of an offense. One must consider the
- 1985 – SCC conduct addressed by the lgl and the purposes for
S.94(2) of MVA of BC  created ALO of driving w/ which such conduct is regulated
suspended license. To obtain conviction, the C needed  Court applied approach in SSM to come to
ONLY to establish proof of driving regardless of conclusion as to what type of offense was being
whether driver was aware of suspension or not violated – that is, was it an offence which required C to
- Successful cvc carried prison term of MINIMUM of 7 prove full mens rea, SLO, or ALO?
days  CONCLUSION – CLEARLY a regulatory offense as
- A due diligence defense (SLO) for regulatory offenses opposed to truly criminal offense
w/ reverse onus became minimum constitutional    any time there is a CHANCE of imprisonment
standard of fault for any offense which threatens the at a min, the offense must be SLO, it CANNOT be ALO
liberty interest (chance of going to jail). as that would violate s.7 of the Charter
- So, s.94(2) could have led to fine or imprisonment - A law enacting ALO would violate s.7 of C ONLY IF &
 the fact it COULD have been imprisonment led court to the extent that it has potential of depriving of life,
to conclude should at LEAST be SLO, TF, making liberty, or security of person – imprisonment
defense of due diligence available - NO imprisonment may be imposed for an ALO

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FAULT REQUIREMENT FOR SPECIFIC CRIMES R. V. EDELENBOS – 2004 – OCA

FIRST DEGREE MURDER CHARGE
SIMPSON CASE – 1981 – OCA
ISSUE  Intent required for attempt murder - The crime of murder requires PROOF of
- Appellant was convicted on November 21, 1977 by PARTICULATE STATE OF MIND (mens rea). For an
jury on two counts of attempted murder unlawful killing to be murder, C must prove 1) that
- Appellant appeals against conviction and, in the the accused MEANT EITHER to KILL the victim or 2)
alternative, against the sentence of life imprisonment MEANT to CAUSE THE VICTIM BH that the accused
imposed KNEW was likely to kill the victim & was reckless
whether the victim died or not
- Liability under s.212(a)(ii) (now s.229(a)(ii)) is The C does NOT have to prove both – one is enough
SUBJECTIVE, and the requisite knowledge that the
intended injury is likely to cause death must be For (2), the C must PBRD the accused’s SUBJECTIVE
brought home to the accused SUBJECTIVELY. To INTENT to cause BH that he KNEW was likely to cause
substitute for that state of mind an intention cause death & was reckless whether death ensued or not
BH that the accused KNOWS or “OUGHT” TO KNOW is “LIKELY” – risk was subjectively so appreciable that to
likely to cause death is to impose liability on an engage in the conduct would be seen as a virtual
OBJECTIVE basis equivalent of an INTENTIONAL killing (i.e. subjective
- The judge inserted the words “OUGHT TO KNOW” – knowledge that death was likely)
which is NOT how the section of CC reads
 An intention to CAUSE BH that the offender OUGHT

TO HAVE KNOWN was likely to cause death is merely
evidence from which, along w/ all other ccs, the jury
may infer that the accused actually had the REQUISITE
INTENTION & KNOWLEDGE required. It does NOT,
however, constitute requisite state of mind
CONSTRUCTIVE MURDER S.230(d) = Culpable homicide is murder where a
Constructive Murder  that which exists, not in fact, person causes D of HB while committing or
but as a result of the operation of law – someone kills attempting to commit (302) robbery, whether or not
in the course of committing an unlawful act the person MEANS to cause D to any HM and whether
 s.229(c) & 230 (formerly 212 & 213) or not he KNOWS that D is likely to be caused to any
HM IF D) he uses a weapon or has it upon his person
A) R. V. VAILLANCOURT – 1987 – SCC
1st degree murder charge – armed robbery of pool - The SCC only wished to state at that time that it is a
haul principle of fundamental justice that absent PBRD of at
ISSUE  Constitution Q before the court: least objective foreseeability, there surely cannot be a
Is s.213(d)/s.230(d) of CC inconsistent w/ provisions of murder cvt, & TF, s.230(d) violated s.7 b/c it did not
either s.7 or s.11(d) of the Canadian CRF, and TF, of no even require objective foreseeability. Also violated
force or effect? 11(d) – not saved by s.1  DECLARED NO FORCE OR
EFFECT
s.7 = right to life, liberty, security
s.11(d) = presumption of innocence  S.230(D) REPEALED!!!
s.229(c) CC = if a person for an unlawful object does
something they ought to know is likely to cause death…
s.230 CC = murder if accused causes victim’s death
while committing one of enumerated offenses
- Court said there must be some special mental
element w/ respect to death for culpable homicide
R. V. MARTINEAU – 1990 – SCC – 3 years after R. V. SHAND – 2011 – ONCA

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Vaillancourt ISSUE  Is the entirety of s.229(c) of CC

ISSUE  constitutionality of s.213(a) (now s.230(a)) unconstitutional under s.7 of the C b/c it permits a cvt
for murder w/o proof of an intent to cause serious BH
It is a PFJ that a cvt for murder cannot rest on to the victim?
anything LESS than PBRD of SUBJECTIVE foresight of
death (at a minimum)  ruling in Martineau does NOT make s.229(c)
- since s.213 of code expressly eliminates requirement unconstitutional  ONLY the words “OUGHT TO
for proof of subjective foresight, it infringes s.7 & 11(d) KNOW” of the section are unconstitutional
of Charter – not saved by s.1 - S.229(c) of CC is NOT unconstitutional as a whole;
ONLY the “Ought to know” section should be read out
- B/c of what they decided they went on to consider - In the CC now, the words “OUGHT TO KNOW” are no
constitutionality of s.212(c) – specifically the words longer there
“OUGHT TO KNOW IS LIKELY TO CAUSE DEATH”
- Subjective foresight of D must be PBRD before cvt for ALL IN ALL  SUBJECTIVE REQUIREMENT FOR MENS
murder can be sustained & as a result, it’s obvious the REA FOR MURDER!!!!
part of s.212(c) (now s.229(c)) allowing for cvt upon
proof that accused OUGHT to have known that D was
likely to result VIOLATES s.7 & 11(d) of the C – b/c it
allowed for cvt upon proof that the accused OUGHT to
have known that death was likely to result which is an
OBJECTIVE test
 COULD NOT BE SAVED by s.1 analysis
“OUGHT TO KNOW” part of s.212(c) REPEALED
CLASSIFICATION OF MURDER R. V. SMITH – 1979 – SASK CA

FIRST DEGREE OR SECOND DEGREE  1st degree murder definition
PAROLE ELIGIBILITY S.745 - Court stated it was both difficult & unwise to attempt
to give exhaustive meaning to the word “planned”
REMEMBER: - Stating it was a common word and to it should be
s.231  murder 1st degree when P&D attributed its meaning as understood in everyday life.
 if NOT P&D, then 2nd degree Clearly, planning must not be confused w/ intention,
(3)  P&D when committed pursuant to an as the plan would only occur after the intent to murder
arrangement under which money or anything of value had been formed. There must be some evidence that
passes or is intended to pass from one person to killing was the result of a scheme or design previously
another, or is promised by one person to another, as formulated or designed by the accused and the killing
consideration for that other’s causing or assisting in was the implementation of that scheme or design. A
causing the death of anyone or counselling another murder committed on a sudden impulse & without
person to do any act causing or assisting in causing that prior csd, even though the intent to kill is clearly
death proven, would NOT constitute a planned murder
(4)  irrespective of whether murder is P&D, 1st
degree if murder of PO, police constable, sheriff,
deputy sheriff, or other persons employed for
preservation of public peace acting in their duties
(5)  1st degree if D caused by a person if its’ in
process of doing another unlawful action
1st Degree  MINIMUM 25 years for parole eligibility
R. V. NYGAARD AND SCHIMMENS – 1989 – SCC R. V. COLLINS – 1989 – OCA

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Baseball beating after bad cheque October 14, 1983 – Nepean Police Force Constable
David Utman was shot & killed by assailant at
SCC Bayshore Shopping Mall
- The element of P&D of murder makes the crime of
murder in the 1st degree MORE culpable & justifies - Evidence indicates gunman says “time’s up, your time
harsher sentence is up” & more quotes
What is the SPECIFIC mens rea required by s.212(a)(ii)?  REGARDLESS, he shot a PO
 this s requires that C prove accused had caused - Alleges TJ erred in refusing changing where trial held
victim such BH that he KNEW that it was likely to - Alleges police conducted unreasonable search of res.
cause D of victim and was reckless whether D ensued - Felt that s.231(4)(a) of CC offended C b/c of the fact
or not as a result of causing that BH. The essential that it allowed for 1st degree murder charged w/o P&D
element is that of INTENDING to cause BH of such a just on basis of killing a PO
GRAVE & SERIOUS NATURE that the accused KNEW  APPEAL DISMISSED
that it was likely to result in the D of the V
- Not only is the onus on the C to establish BRD that
- Vital element of RECKLESS INTENT is that of causing the actus reus & mens rea of the substantive offense
such BH that the perp KNOWS that it is likely to cause of murder under s.212, there is also an onus on the C
D and YET PERSIST in the assault. There can be NO to establish BRD that the V was a person who falls
DOUBT that a person can P&D to cause terrible BH that within the designation of the occupations set forth in
he KNOWS is likely to result in D. s.214(4)(a) & BRD that the accused KNEW this or was
- P&D to cause BH which is likely to be FATAL must of reckless with respect to the victims occupation
necessity INCLUDE the P&D to continue & to persist in
that conduct despite the K of the risk
R. V. ARKELL – 1990 – SCC  SO YOU STILL HAVE TO PROVE PERSON’S
 S.214(5)  NOW S.231(5) SUBJECTIVE INTENT TO CAUSE PERSON’S D OR BH
- Beginning of s says “No P&D is necessary” LIKELY TO CAUSE D & THEY WERE RECKLESS IN
s.231(5) says irrespective of whether murder is P&D on CAUSING THAT PERSON’S D
the part of any person, murder is 1st degree in respect
of a person when D is caused by that person while Ex) If you HIJACK a plane, a person would subjectively
committing or attempting to commit an offence under acknowledge that death or murder is likely to ensue,
one of the following sections… but yet you would continue
 P&D IS NOT NECESSARY IF MURDER IS EXECUTED
DURING ONE OF THESE OTHER OFFENCES
- Cvt for murder requires PBRD of SUBJECTIVE

FORESIGHT of D. S.214(5) represents a decision by PLM
to impose a more serious punishment on those found
guilty of murder while committing certain listed
offenses
 s.214 now ONLY comes into play when murder has
been PBRD  this means the offender has been
PROVEN to have a SUBJECTIVE FORESIGHT OF DEATH

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Criminal Brief - David - FALL

Criminal Law (University of Windsor)

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Criminal Law Brief

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resolution discussion - Will always be inequalities b/w parties that might

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FOUR SOURCES OF CRIM LAW (MIZEL) 1) COMMON LAW (JURISPRUDENCE)

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supremacy regarding the constitutionality of laws, the law is

HUNTER V. SOUTHAM – 1984 – SCC Two types of Charter Challenges

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 Also held that any force against a child under

HOLDING: After adding in these elements, they

INTERPRETATION OF CRIMINAL STATUTES R. V. CLARK – 2005 – SCC

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ADVANTAGES AND DISADVANTAGES OF BILL C-75 Ex) Breaking and Enteriing

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Underlying Policy Issues mere mental disturbance is required

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- evidence directly proves a particular point

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R. V. MORELLI  INTANGIBLE POSSESSION OR FACTS  Dealing w/ how to address how we deal w/

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DOCTRINE OF INNOCENT POSSESSION DOCTRINE OF DE MINIMUS

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TO SUM UP: What is a REALISTIC POSSIBILITY OF TRANMISSION?

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OMISSIONS – JUSTICE DEAN FAGAN V. COMMISSIONER OF METROPOLICAN

 As soon as Fagan REFUSED to move the car, the act

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R. V. THORNTON – 1991 – OCA  1993 – SCC R. V. BROWNE – 1997 – OCA

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VOLUNTARINESS R. V. RABEY – 1980 – SCC  CONSCIOUSNESS IS A

R. V. PARKS – 1992 – SCC  INVOLUNTARY / SLEEP- R. V. LUCKI – 1955 – SASKATCHEWAN

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R. V. SWABY – 2001 – CA VOLUNTARINESS SUMMARY

3) Generally, where it can be shown that the conduct

4) Crown ALWAYS BEARS BOP VOLUNTARY ACT (BRD)

HOMICIDE & CAUSATION S.229  MURDER DEFINITION

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mechanical, or physical sense, and the contribution of

 SO ONE TEST FOR CAUSATION

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5) Underlying crime & murder were apart same series

RATIO  If at the time of death, the original wound is FACTS

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SCC  IF THE C CAN’T PROVE BRD THAT ACCUSED

- Mental element may be either intention to do OBJECTIVE/SUBJECTIVE DISTINCTION

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OBJECTIVE State of Mind (subjective

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FAULT REQUIREMENT FOR SPECIFIC CRIMES R. V. EDELENBOS – 2004 – OCA